Litong v Blackmores Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Litong v Blackmores Limited [2022] NSWPIC 237
APPLICANT:	Concepcion Litong
RESPONDENT:	Blackmores Limited
MEMBER:	Catherine McDonald
DATE OF DECISION:	24 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Lumbar spine injuries in 2012 and 2021; worker returned to normal duties; disease injury; consequential psychological condition; current work capacity; ability to earn in a range of suitable employment; Held– award for applicant for weekly compensation and section 60 of the Workers Compensation Act 1987 expenses for which second insurer is liable.
DETERMINATIONS MADE:	1. The applicant discontinues the claim for weekly compensation after 18 January 2022. 2. The Commission finds that a. the applicant suffered an injury to her lumbar spine which was the aggravation of a disease and that the deemed date of injury was 8 February 2021, and b. the applicant suffered a consequential psychological condition. 3. The Commission determines that the respondent is to pay the applicant: a. weekly compensation under s 37 of the Workers Compensation Act 1987: i. at a rate or rates to be agreed by the parties reflecting any loss of earnings in the period from 21 April 2021 to 27 August 2021, and ii. the rate of $210.40 per week from 28 August 2021 to 18 January 2022; b. section 60 expenses. 4. The parties have liberty to apply by email if they are unable to agree on the amount of weekly compensation payable, if any, between 21 April 2021 and 27 August 2021.

STATEMENT OF REASONS

BACKGROUND

Conception Litong was employed by Blackmores Limited (Blackmores) as a machine operator. She claims that she suffered an injury to her lumbar spine, and a consequential psychological condition, as a result of the nature and conditions of her employment from 2011 to 8 February 2021 or that she suffered the aggravation of a disease with a deemed date of injury of 8 February 2021.
Blackmores was insured by QBE Workers Compensation (NSW) Limited for all periods of Ms Litong’s employment up to 31 December 2017. The liabilities of that insurer are managed by GIO and I will refer to the manager of that part of the claim as GIO to avoid confusion.
During GIO’s period of risk, Ms Litong suffered a lumbar strain injury on 25 October 2021 for which she was paid compensation.
Since 1 January 2018, QBE Workers Compensation (NSW) Limited has again been on risk for Blackmores and is referred to in the documents as QBE/icare. I will refer to it as QBE.
Each of the insurers says that the other is liable to pay any compensation to which Ms Litong is entitled and each disputes that there is sufficient evidence to find that she suffered a consequential psychological condition.

PROCEDURE

The claim was listed for conciliation conference and arbitration hearing on 3 March 2022 when Mr Moffet of counsel appeared for Ms Litong, Ms Compton of counsel appeared for GIO and Ms Goodman of counsel appeared for QBE.
The parties agreed that Ms Litong’s pre-injury average weekly earnings (PIAWE) were $1,200.50.
Mr Moffet made an application to amend the claim to close the period for which weekly compensation was sought to 18 January 2022. No formal order was made and, as the submissions reveal, there was some confusion about whether Ms Litong maintained that position. The issue is clarified in the submissions and formalised in the orders made in this decision.
Negotiations on the day of the conciliation conference and arbitration hearing were protracted but ultimately unsuccessful and it was necessary to make an order for written submissions. Subject to one extension agreed to by the parties, the submissions were filed in compliance with the order.
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 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

The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD)and attached documents;
(b)    Reply in the interests of GIO, and
(c)    Reply in the interests of QBE.

Statements

Ms Litong’s statement dated 27 August 2021 dealt mainly with the injury in 2021. She set out her education, including an accounting degree, and her employment history between her arrival in Australia in late 1986 until she commenced at Blackmores in June 2011. Ms Litong said that she worked 37.5 hours per week at Blackmores.
In respect of the first injury, Ms Litong merely said that in about October 2011 [sic] she noticed symptoms of acute pain in her lower back after working in the wash bay, cleaning machine parts. She received some physiotherapy treatment and continued to work full time. She noted that a claim was lodged with QBE and that, despite “constant pain” she persevered and continued to work full time and on full duties over the “next 9 or so years.”
At the time of the 2021 injury, Ms Litong said that she was required to open boxes of capsules and pour them into a hopper, to pull large bins containing hundreds of kilos of capsules which were entered mechanically into hopper, and to wash and sanitise machine parts at the end of every run. She said that on 8 February 2021 she was working repetitively opening boxes and pouring the products into the hopper. She noticed pain in her lower back and reported the injury to her supervisor. She took three days of personal leave then made a claim for compensation. She saw her general practitioner Dr Kadaba who ordered a CT scan.
Ms Litong returned to work on selected duties for four hours on five days per week which was later increased in April 2021 to six hours on five days per week. When she prepared her statement, Ms Litong was working six hours on three days per week on selected duties, dealing with paperwork. On the day she signed her statement she received a letter from her employer saying they were unable to continue to provide suitable duties.
Ms Litong provided additional detail about the later injury in her supplementary statement dated 22 November 2021, correcting the date of injury to 2012. She said that her duties were heavy and arduous and she was required to lift and transfer metal components of the hopper and take them to the dishwasher then transfer them to the table. The hopper itself did not fit into the dishwasher and she washed it manually. She said that she was off work for two to three weeks in October 2012 and then returned to work on suitable duties and eventually to normal duties. She suffered right leg pain which resolved but her back pain continued.
Ms Litong said that the back pain was manageable though when in the lead up to 8 February 2021 it was gradually increasing. The pain did not resolve and has never returned to the pre-2021 levels and she changed to practitioners because Dr Kardaba was “always pressuring me to upgrade my hours”. She said she should never have been upgraded to six hours per day. Her new doctor, Dr Lim, downgraded her hours in July 2021 because her back pain was getting worse.
Noting that her employment history included work as a bookkeeper, she said that work was very basic and she could not do that work today because she could not sit at a computer and would need to upgrade computer skills. She said she felt that kind of work was much more complicated now.

2012 injury

Ms Litong completed an incident report form on 25 October 2021 in respect of shoulder and back pain suffered in the wash bay. The insurer’s notification of injury form says that she returned to work on 29 October 2012.
After the 2012 injury, Ms Litong underwent a CT scan on 17 January 2013. Dr Gacs reported that it showed a very large broad-based disc bulge at L4/5 compressing the thecal sac but without significant compression of the L5 nerve root. At L5/S1 there was radiological spinal canal stenosis due to a combination of short bony pedicles, a large broad-based disc bulge and very severe facet joint and ligamentum flavum hypertrophy. There was mild bilateral foraminal stenosis with mild compression of the origin and possible proximal aspect of the S1 nerves bilaterally.
Ms Litong’s general practitioner, Dr McCririck referred her to Dr Cree, an orthopaedic surgeon. On 26 April 2013 Dr Cree reported that Ms Litong had low back pain which radiated down her right leg. She continued to work on light duties but suffered pain at the end of the day. Physiotherapy had not helped. Dr Cree considered that she had S1 radiculopathy, sought further scans and proposed an injection.
In a report to QBE dated 16 May 2013, Dr McCririck said that Ms Litong had a chronic degenerative disc condition before the injury, which caused minimal discomfort. He considered that she had aggravated the underlying condition “by prolapsing the L5/S1 disc”.
An MRI scan was reported on by Dr Perry on 3 July 2013. He said that there was no focal disc herniation but a mild posterior disc bulge at L4/5.
Dr Cree reviewed the scan on 19 July 2013. He recommended physiotherapy and hydrotherapy and asked Dr McCririck to consider an injection if her symptoms did not settle.
QBE arranged for Ms Litong to see Prof Erhlich, orthopaedic surgeon, who reported on 23 August 2013. Ms Litong told him that she was better than she was when she was doing heavy work at the wash bay but she still has to do fairly heavy work and often does have low back pain. She was continuing to do her normal duties on a full-time basis. Prof Erhlich considered that Ms Litong had developed low back pain in response to heavy physical work. Her back had improved with lighter work but symptoms continued and he considered they were most appropriately attributed to a degree of disc degenerative and spondylotic disease which would be a source of pain from heavier work. He did not consider that specific treatment was required. He considered that the aggravation of pre-existing degenerative changes had ceased. He referred to degenerative changes generally and did not identify any particular disc as the source of pain.
Treatment notes from Narrabeen Physiotherapy span the period 1 August 2013 to 26 September 2013.
On 27 September 2013 QBE declined liability on the basis that Ms Litong was no longer suffering an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act).
On 1 November 2013 Dr McCririck certified Ms Litong fit for pre-injury duties. She returned to normal duties. There is no medical evidence with respect to the period between November 2013 and 8 February 2021.
A list of payments shows in the summary that weekly compensation totalling $1,633.35 was paid to Ms Litong.

2021 injury

Dr Kadaba ordered a CT scan which was carried out on 10 February 2021. Dr Bank reported:
“At the L4/L5 level mild generalised posterior disc bulge with mild encroachment on the thecal sac. Ligamentum laxity. Moderate osteoarthritis involving the L4/L5 apophyseal joints bilaterally.
At the L5/S l level generalised posterior to left paracentral disc bulge with mild encroachment on the thecal sac and narrowing of the left lateral recess. Ligamentum laxity. These changes result in narrowing of the spinal canal at this level. Hypertrophic osteoarthritis involving the L5/S1 apophyseal joint.”
Dr Kadaba wrote responded to an “early intervention fax” on 13 March 2021 and said that the diagnosis was “musculoskeletal back pain similar to when had a workplace injury in 2012” and that the injury occurred because Ms Litong lifted heavy objects at work. The injury appeared to be the first recurrence since 2012. She supplied some documents but was unable to provide the clinical notes.
Mr Vescio, physiotherapist, reported to Dr Kadaba on 5 March 2021. He said that physical assessment confirmed the findings on the CT scan. On 8 April 2021 Mr Vescio said that Ms Litong had responded well to a combination of manual therapy and exercise therapy and that her movement and function was increasing and her pain decreasing.
Dr Kadaba referred Ms Litong to Dr Delaney at the Narrabeen Academy of Sport. Dr Delaney’s notes for a consultation on 6 April 2021 record the diagnosis of “L5/S1 facet arthrosis pain from L5/sacral pseudarthrosis.”
There is little evidence about treatment during the period Ms Litong was off work.
A/Prof Miniter saw Ms Litong at the request of QBE on 29 March 2021 and reported on 16 April 2021. Ms Litong told A/Prof Miniter about the onset of back pain in 2012 while working as a process worker. She told him that the pain settled over a period of time but troubled her on and off over the years. She began to experience significant tightness on 8 February 2021 which caused her to take three days off work. A/Prof Miniter said that no investigations had been undertaken and none were required, though later in his report he noted that the CT scan showed degenerative changes but no features of neurological compression. He confirmed his opinion that the investigation was not required.
Though Ms Litong had undergone physiotherapy, A/Prof Miniter did not consider that it had a role in her treatment. He said:
“This lady presents today with mechanical back pain. This is a minor and, in my opinion, does not require any ongoing treatment. Her own strengthening and fitness program is sufficient, and I note that since the instigation of the COVID program, her Pilates and yoga classes which were being performed at Blackmore's within the company, have been discontinued. Perhaps it would be wise to reinstitute these.
In summary, I am unable to relate her presentation to the workplace. The nature and conditions of her employment have not changed, she has not had a specific injury, and in general terms one cannot find elements of the workplace which explain the presentation. It is, of course, sufficient to explain the matter by way of the episodic nature of mechanical back pain with which she does present.”
A/Prof Miniter did not consider that employment was the main contributing factor to Ms Litong’s “presentation.” He considered that she suffered the recurrence of an ongoing issue and that she was fit to return to work.
A/Prof Miniter’s assessment formed the basis of QBE’s notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) issued on 21 April 2021. It denied that Ms Litong had suffered an injury to which her employment was a substantial contributing factor or the main contributing factor. QBE said that there was no work related aggravation of the 2012 injury or new frank injury in 2021. QBE determined that Ms Litong’s mechanical back pain was not related to her employment and not compensable.
Dr Lim prepared a report dated 21 May 2021, the date of his first consultation, which was undertaken by telehealth. He recorded that Ms Litong suffered a back injury due to repetitive lifting, twisting, prolonged standing, pushing and pulling in the setting of years of physical work. After two days off, Ms Litong returned to work on light duties with reduced hours which further aggravated her lower back pain. He said that she complained of low mood and overthinking and loss of independence and social withdrawal due to her physical limitations. Dr Lim said from his understanding of her role it would be reasonable to conclude that the mechanism of injury was the result of the nature and conditions of her employment.
An MRI scan was undertaken on 4 June 2021 which was reported as showing mild multilevel facet joint arthrosis.
On 15 June 2021 Dr Endrey-Walder reported to Ms Litong’s solicitor. He described her work and said it was physically demanding. He said out the history that he obtained with respect to the 2012 injury and the onset of tightness in her lower back in 2021, after which she underwent physiotherapy. He said that Ms Litong began her return to work after only three days off and was working six hours on five days a week at the time of the consultation. She had recently begun to consult Dr Lim, though only by telehealth. He believed that Ms Litong was struggling with her workload and considered that future treatment was likely to involve repeated CT-guided facet joint injections.
Dr Endrey-Walder disagreed with A/Prof Miniter’s opinion and said that to negate her daily work as being a significant contributing factor to her condition is unrealistic. Notably Dr Endrey-Walder did not provide a diagnosis in his report.
On 16 June 2021 and in another response to an early intervention fax, Dr Kadaba said that Ms Litong suffered a multi-level lumbar facet and disc condition from lifting heavy objects and that she had suffered a similar injury in 2012. She said that Ms Litong may have suffered an aggravation of a pre-existing condition, “considering her 2013 presentation and reviewing the lumbar CT.” She said there were no back injuries reported since 2013. Dr Kadaba said Ms Litong should follow Dr Delaney’s advice and undertake physiotherapy. She considered that Ms Litong would be fit for pre-injury duties in eight weeks.
On the same day Ms Litong saw Dr Khong, neurosurgeon, at the request of Dr Lim. She complained of right-sided lower back pain around the sacroiliac joint with some mild radiation down the anterior right thigh with some tingling. Before the second injury the pain was on and off but was now constant. Dr Khong said that scans demonstrated severe facet joint arthritis at L4/5 and L5/S1 and bilateral lateral recess stenosis at L4/5 causing L5 compression. He considered that her back pain may be coming from the facet joint arthritis though it may clinically also be right-sided sacroiliac joint dysfunction. He considered that her work caused an acceleration and acute exacerbation of degenerative changes in her lumbar spine. Dr Khong said he may organise either facet joint or sacroiliac joint injections depending on the results of a bone scan. He proposed to review Ms Litong in a few months.
QBE conducted a review of its decision to decline compensation and issued a notice under s 287A of the 1998 Act on 5 July 2021. It preferred the opinion of A/Prof Miniter to those of Dr Lim and Dr Endrey-Walder.
Dr Khong saw Ms Litong again on 23 July 2021. At that time she was working six hours on three days per week. He noted that the bone scan showed increased uptake in the right L4/5 joint but that she had symptomatic relief on Mobic. He now considered that the right L4/5 facet joint was the cause of her pain and he suggested a steroid injection at that level or radiofrequency ablation if her pain worsened. He encouraged physiotherapy. He did not make arrangements to see Ms Litong again.
Dr Lim undertook a telehealth consultation and issued a certificate of capacity on 23 July 2021 stating that Ms Litong had capacity for some type of work from 23 July to 1 October 2021 for six hours on three days per week. There is no explanation for the downgrade in capacity in Dr Lim’s notes or certificates. The only limitation was that Ms Litong be limited to lifting or carrying less than 8kg on a non-repetitive basis.
On 27 August 2021 Blackmores wrote to Ms Litong and said that it was no longer reasonably practicable to provide suitable duties, effective at the close of business on that day. Blackmores indicated its intention to seek medical advice about her long term ability to perform the inherent requirements of her role.
On 17 September 2021 Ms Litong saw Dr Lim by telehealth. He noted “ongoing issues, nothing change” and “becoming depressed.” He recorded that she had ceased work on 27 August 2021 and certified her as having no current work capacity.
The notes from Dr Lim’s practice reveal that Ms Litong saw an unnamed psychologist who diagnosed adjustment disorder on 13 October 2021 and that Ms Litong was upset “over the way employer has terminated her.”

On 13 October 2021 Ms Vystavkina, psychologist, prepared an Allied Health Recovery Request. She diagnosed adjustment disorder and sought approval for eight sessions of treatment. Ms Vystavkina maybe the psychologist whose notes appear with Dr Lim’s notes. She said in the Allied Health Request:
“Mrs Litong noted a deterioration in her mental state after August 2021 characterised by anxious and depressive cognitions, rumination, sleep disturbance, anergia, crying bouts, avoidance and irritability as a result of an uncertain working future, chronic pain and being unable to perform activities of daily living including cleaning duties which involve twisting and lifting as well as being unable to do gardening and work in the garden in general.”
On 15 October 2021 Dr Lim noted that Ms Litong suffered chronic pain with psychosocial barriers. He noted that her “leave will finish soon” and certified her as having no current work capacity.
On 26 October 2021 the unnamed psychologist noted:
“Drastic improvement in distress level (laughing, normal speech, not crying). Pt reported to practice sent last session guided meditations, which she listens daily now. Pt reported strong calming effect and decreased anxiety. More dearousal resources have been sent to Pt today for further practice. Pt reported some plans for the future, Pt appeared more confident and focused on own wellbeing and self care. Next session motivational interviewing.”
On 4 November 2021 Mr Egli of Blackmores wrote to Ms Litong and said that he needed an assessment of her fitness for duty and that Dr Lim had repeatedly ignored the requests. Blackmores had arranged two medical examinations with Dr McBurnie but Ms Litong did not confirm that she would attend, despite several requests. In the absence of confirmation, the appointments were cancelled. Ms Litong was asked to attend a meeting on 9 November 2021 and told that if she did not attend, the failure may impact on her further employment.
At the next consultation on 9 November 2021, the psychologist recorded that Ms Litong sought strategies to deal with negative thoughts.
The last substantive entry in the general practitioner’s notes is for a consultation with Dr Lim on 16 November 2021 who again recorded “nothing changes.” He noted that Ms Litong was using long service leave and certified that Ms Litong had no current work capacity until 18 January 2022. That consultation was a telehealth consultation, as was every other consultation with Dr Lim, according to the notes in the file.
Dr Endrey-Walder examined Ms Litong again and reported on 23 November 2021. He recorded that Ms Litong had worked six hours on five days a week on restricted duties until 27 August 2021 when she was sent home because no more light duties were available. After setting out his findings on examination, Dr Endrey-Walder said that Ms Litong’s chronic pain was a continuation of the original injury and he agreed with Dr Khong’s recommendations. He said:
“I believe that this lady suffered right-sided L4-5 facet joint injury causing chronic inflammation as a direct consequence of the nature and conditions of her work.
Her symptoms have remained intermittent, with a particular, acute aggravation in February this year, likely rekindling acute inflammation at the diseased facet joint.
Thus, the injury of 8 February 2021 was a re-aggravation and exacerbation of an intermittently dormant inflammatory process at the particular facet joint.
I have little doubt that her daily work over the years between the first and second specific injury would have to be considered as contributing to the ongoing inflammatory process at the damaged facet joint.”
Dr Endrey-Walder also said:
“She had managed for a while with light duty work over 30 hours a week, but this has now been withdrawn from her, only adding to her psychological distress which is primarily related to the chronicity of her lower back condition.
Her incapacity as it relates to her normal and usual work duties in her job of some 10 years relates to the pain engendered with physical activity, most especially bending, twisting and turning on her torso which is part and parcel of the work of a Machine Operator.”
On 3 December 2021 Blackmores wrote to Ms Litong and noted that had failed to attend a meeting on 9 November 2021 which was called to discuss her failure to attend the medical examinations it had arranged. Based on Dr Lim’s certificates and a report of Dr McBurnie which does not appear in the file, Blackmores determined that Ms Litong was unable to carry out the inherent requirements of her role and said that it proposed to terminate her employment. Her employment was terminated on 10 December 2021.

SUBMISSIONS

Counsel’s written submissions form part of the file.
Mr Moffet summarised the medical evidence to support his submission that Ms Litong suffered injury and a consequential psychological condition as a result of the nature and conditions of her employment from 2011 to 8 February 2021. He said that her long and uncontradicted history of heavy work combined with the underlying condition found on MRI scans in 2013 and 2021 supported the proposition that she suffered injury by way of an aggravation of a disease process and that employment was the main contributing factor to that aggravation.
Mr Moffet said that the second insurer appeared liable to pay compensation. He said
“From 14 May 2021 (the first date when weekly benefits ceased) to 27 August 2021 (when the respondent withdrew suitable duties (ARD 29)), the applicant was certified as fit for suitable duties and from time to time during that period performed those duties. If the applicant succeeds on the issue of liability, in our submission the parties are capable of agreeing on the proper rates payable in this period based on the wages paid and the certificates.”
Mr Moffet said that Ms Litong was unfit from 27 August 2021. He attached a certificate dated 24 March 2022 which Ms Litong sought to admit into evidence, also certifying her unfit. He said that Ms Litong would be entitled to $960.40 per week from 27 August 2021 with amounts in the previous period to be agreed between the parties.
Ms Goodman prepared submissions on behalf of QBE. She said that QBE objected to the admission of the certificate attached to Ms Litong’s submissions, noting that at the arbitration the claim was closed at 18 January 2022. QBE objected because the certificate was not relevant having been based on a consultation on 24 March 2022 and certifying in capacity for a period in the past.

GIO

Ms Compton’s submissions refer to the first and second respondents even though the insurers were not so joined to the proceedings. In her submissions, she called QBE the first respondent and GIO the second. GIO sought an award in its favour, an order that is inappropriate where there is one respondent, represented by two insurers.
GIO objected to the tender of the medical certificate attached to Ms Litong’s submissions.
GIO said that Ms Litong suffered a lumbar strain only in 2012 and was certified fit for pre-injury duties on 11 November 2013. The list of payments made showed that weekly compensation was paid only in the period from 25 October 2012 to 30 November 2012. After that period, Ms Litong returned to work and did not suffer wage loss but did continue to undergo treatment.
Ms Compton said there was no contemporaneous evidence that Ms Litong “continued to experience distress” as a result of the 2012 injury and there is no contemporaneous report of back pain to any practitioner between 2012 and her ceasing work in 2021. Ms Compton said that Ms Litong was no longer performing wash bay tasks when she ceased work because she described her work as opening boxes and pouring products into a hopper.
With respect to the nature of the injury, Ms Compton said that the injury in 2012 was described by Dr McCririck and Dr Cree as an injury to L5/S1 and that the 2021 injury was to L4/5.
Ms Compton said that there is no evidence of any complaint to a general practitioner between 2013 and 2021. She said that the radiological reports showed a development in Ms Litong’s condition, supporting the submission that Ms Litong’s presentation was not due to the acute injury in 2012.
Ms Compton submitted that there was no medical evidence to support the conclusion that Ms Litong has suffered a diagnosable psychological condition. The “report” of Ms Litong’s psychologist did not conform to the requirements for opinion evidence and was merely a request for treatment. In the absence of an explanation for the diagnosis of adjustment disorder, the document should not be given any weight. In any event, the report did not suggest that the 2012 injury was a cause of the consequential condition. Ms Compton said that I would be comfortably satisfied that I would make the orders set out at the beginning of her submissions.
Ms Goodman summarised the evidence in respect of the 2012 injury and the reports of Drs Khong and Endrey-Walder and A/Prof Miniter. She said that based on the opinion of A/Prof Miniter I would not be satisfied that Ms Litong had suffered injury apart from that on 24 October 2012. The evidence of Ms Litong, Dr Endrey-Walder and A/Prof Miniter is to the effect that she did not completely recovered from the effects of that injury.
With respect to the consequential psychological condition, Ms Goodman said that no claim had ever been made and the first notice QBE had was the receipt of the ARD. The only evidence was that of Ms Vysatakvina and there was no evidence which asserted that Ms Litong could not work because of her alleged injury. Ms Goodman noted that Dr Lim’s notes recorded a drastic improvement in distress levels by his consultation on 26 October 2021. She also noted that the majority of the recent consultations were conducted by telehealth which meant that the practitioners were heavily reliant on the information provided by Ms Litong. There was also no reference to the condition in Ms Litong’s statements, which would be expected if she truly suffered from a psychological injury.
With respect to capacity, Ms Goodman noted Dr Endrey-Walder’s opinion that Ms Litong should reduce her working hours to prolong her working life. In her supplementary statement Ms Litong said that she stopped seeing Dr Kadaba because of pressure to upgrade her hours and she saw Dr Lim who downgraded her hours in July 2021 because her pain was getting worse. Ms Goodman noted that this is contrary to Dr Lim’s clinical note which said that nothing has changed. She noted that Dr Lim’s certificates issued on 15 October and 16 November 2021 were inconsistent with the expert medical evidence. Because there was little contemporaneous evidence concerning a psychological condition Ms Goodman said that I would reject Dr Lim’s opinion with respect to incapacity and find that Ms Litong was fit to return to her pre-injury hours and duties.
In the alternative, Ms Goodman said that I would find that Ms Litong was fit to work at least six hours a day on five days per week, as she was working before Dr Lim certified that she had no current work capacity. Noting Ms Litong’s past experience, Ms Goodman submitted that Ms Litong could work as a bookkeeper or console operator and:
“In all the circumstances, it is submitted that the Applicant could earn $750.00 per week ($25.00 per hour x 30 hours per week). 80% of the Applicant’s PIAWE is $960.40 ($1,200.50 x 80%). $960.40 pw less $750.00 = $210.40. There should therefore be an award entered on behalf of the Worker at the rate of $210.40 pw from 14 May 2021 to 18 January 2022.”
Ms Goodman accepted that a general order for s 60 expenses would follow if an award was entered in favour of Ms Litong.

Reply

In his reply submissions, Mr Moffet conceded that the claim was closed at 18 January 2022 at the conciliation conference and arbitration hearing and withdrew the application to tender the further medical certificate.
Mr Moffet said that the evidence of the gradual onset of pain, combined with the existence of pre-existing lumbar spinal disease supported a finding that the injury was the aggravation of a disease to which employment was the main contributing factor. He said that A/Prof Miniter’s reasoning was unsound because Ms Litong did not allege that she suffered a “specific” injury. He said that the deterioration in Ms Litong’s mental health was described in Ms Vystavkina’s report and the treatment recommended by her general practitioner in the form of counselling was clearly reasonable in response to her history and symptoms.
The downgrade in Ms Litong’s capacity, Mr Moffet submitted, followed Blackmores’ withdrawal of suitable duties which had been the basis of the general practitioner’s assessment of capacity. He said that once she was removed from rehabilitation and in the open labour market, Ms Litong had no capacity.
Mr Moffet said that if I did not accept that submission, Ms Litong would be entitled to receive no less than $50 per week when on suitable duties between 14 May and 27 August 2021 and $350.50 being the difference between 80% of PIAWE ($960.40) and 30 hours at the minimum hourly wage ($609.90).

FINDINGS AND REASONS

There is no dispute that Ms Litong suffered an injury on 24 October 2012 but the ongoing effects of that injury are disputed. There is also no dispute raised on the evidence that Ms Litong’s work tasks were reasonably heavy.
Injury is defined in s 4 of the 1987 Act:
“4   Definition of ‘injury’
(cf former s 6 (1))
In this Act—
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, …”
The radiology at the time of the 2012 injury showed degenerative changes at both L4/5 and L5/S1. Dr McCririck described the injury as an aggravation of degenerative changes at L5/S1 but Prof Erlich referred to degenerative changes generally. As an aggravation of underlying changes, the 2012 injury was a disease injury.
The contemporaneous evidence shows that Ms Litong was off work for a short period and returned quickly to selected duties. After about a year, she returned to her normal duties and continued to perform those duties until 2021. There is no evidence of any complaint to a doctor or to Ms Litong’s employer between 2013 and 2021, though she said that she continued to suffer pain. Ms Compton said that Ms Litong was no longer performing the wash bay tasks but there is no definitive evidence that was the case. Prof Erlich said that she was not performing that task at the time of his report but Ms Litong’s statement that she continued to wash and sanitise machine parts suggests otherwise. I am satisfied that the tasks of Ms Litong’s normal duties remained basically the same throughout the period of her employment and that at least some of the tasks she performed were heavy.
When Ms Litong suffered a further onset of pain in 2021, she had only a few days off work before returning to selected duties. Ms Litong’s treating doctors, Dr Kadaba and Dr Khong, described her injury as an aggravation of degenerative changes in her lumbar spine, as did Dr Endrey-Walder, qualified by her solicitors.
A/Prof Miniter said that no investigations were required and dismissed the results of the CT scan which had been undertaken because there was no neurological involvement. His opinion is based on the fact that the nature of Ms Litong’s employment had not changed and there was no specific injury. He did not engage with the tasks which she performed and with the evidence and his short statements in response to the insurer’s questions do not explain why the 2021 injury was an episode of mechanical back pain rather than an aggravation of an underlying disease.
I prefer the opinions of Drs Khong and Endrey-Walder and am satisfied that Ms Litong suffered an injury as a result of her work duties, which was the aggravation of a disease.
Section 16 of the 1987 Act provides:
“16   Aggravation etc of diseases—employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1)     If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)      at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
The injury is deemed to have happened on 8 February 2021 and QBE, as the insurer on risk at that time, is liable to pay the compensation resulting from that injury.

Incapacity

I accept that Ms Litong has some incapacity for work as a result of the injury and that she is not fit to perform her pre-injury duties.
There is no information in the file to allow me to assess the amount of compensation (if any) to which Ms Litong was entitled in the period between 21 April 2021 when the s 78 notice took effect and 27 August 2021 when suitable duties were withdrawn. The amount claimed in the ARD does not bear any relationship to the certificates. There is no wages schedule. Mr Moffet said in his submissions that the parties should be able to agree on the amount payable in that period. I will grant liberty to apply in the event they cannot agree on the mathematical amount payable, taking the following findings into account.
Ms Litong was certified fit to work 30 hours per week when liability was declined on 21 April 2021, as certified by Dr Kadaba on 4 April 2021. The next certificate was prepared when she consulted Dr Lim for the first time on 21 May 2021 and he also certified her fit for 30 hours per week.
On 15 June 2021, Dr Endrey-Walder recommended that Ms Litong reduce her hours to four hours on five days per week to prolong her working life, though he observed that she was working six hours a day. He did not have a history of the tasks she was performing at work.
In July 2021 Dr Khong noted that Ms Litong was working. Until that date, Ms Litong had been certified fit for six hours on five days but on that day Dr Lim downgraded her capacity to six hours on three days without explanation. Dr Khong did not express an opinion about Ms Litong’s capacity but he did not arrange to see her again.
Ms Litong was working on selected duties in August 2021 when Blackmores told her that it was unable to continue to provide suitable duties. There is little evidence from Ms Litong about what she was doing while on suitable duties, other than that it was paper work. There is no evidence that she had any difficulty performing those duties.
From August 2021, Dr Lim provided certificates which said that Ms Litong did not have any current work capacity. I am unable to accept that is so when no reason is given for the reduction in her capacity and when Dr Lim has never examined Ms Litong.
The withdrawal of suitable duties does not necessarily lead to a conclusion that Ms Litong has no current work capacity. The tenor of the medical evidence is that she does have capacity so that it is necessary to determine what work she is able to perform.
Section 32A of the 1987 Act provides:
“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 absence of evidence about what Ms Litong was doing at Blackmores, there is no reason to consider that the duties were made up or not a real job. In Wollongong Nursing Home Pty Ltd v Dewar[1] (Dewar) 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.”[2]
And
“Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are’ of a type or nature that is generally available in the employment market’.”[3]
[1] [2014] NSWWCCPD 55.
[2] At [51].
[3] At [63].
The only specific restriction in the certificates is that she is not able to lift more than 8kg and any lifting should be on a non-repetitive basis.
Ms Litong obtained an accountancy qualification in the Philippines. She did some basic work as a bookkeeper on her arrival in Australia. She said that she would be unable to sit to use a computer but there is no medical evidence to support that assertion, particularly if she was working reduced hours and able to take breaks. There is no medical evidence to support the assertion that Ms Litong is not fit for the clerical duties she was undertaking at the time she ceased employment.
There is a wide range of real jobs which Ms Litong would, based on the medical evidence, be able to perform. Examples of suitable employment which fall within her restrictions are clerical work, work as a console operator or cashier or retail work which falls within those restrictions. Because of the wide range of roles which are suitable employment, I do not accept Mr Moffet’s submission that her compensation should be measured by reference to the minimum wage. I accept Ms Goodman’s submission that work for which she is fit is likely to yield $25 per hour.
Ms Litong was working 30 hours per week until suitable duties were withdrawn. Though Dr Endrey-Walder considered that she should reduce her work to four hours on five days to prolong her working life, he did not say that Ms Litong was unable to work 30 hours and it is unclear if he considered her pre-injury or suitable duties. In the absence of that explanation, I accept that Ms Litong is fit to work 30 hours per week in suitable employment.
Ms Litong’s PIAWE was $1,200.50 and 80% of that figure is $960.40. Thirty hours at $25 per hour equals $750. The difference between her PIAWE is $210.40 per week.

Psychological condition

Blackmores disputes that Ms Litong suffers a psychological condition as a consequence of her lumbar spine injury. The essence of the dispute is that there is no medical evidence providing a diagnosis of the condition.
While the evidence is equivocal about the severity of the condition, I am satisfied that Ms Litong has suffered an adjustment disorder as a result of her injury and its aftermath. The notes from Dr Lim’s practice show that Dr Lim diagnosed that Ms Litong was becoming depressed on 17 September 2021. He referred Ms Litong to a psychologist whose notes appear interspersed with his. Some of the notes to which Ms Goodman referred as Dr Lim’s notes are in fact the notes from an unnamed psychologist.
A psychologist saw Ms Litong on 5 October 2021, but the request for treatment was not completed by Ms Vystavkina until 13 October, when an assessment was undertaken. The Allied Health Recovery Request sought approval for eight sessions (though it was completed after liability for the claim had been declined.) Dr Lim recorded a diagnosis of adjustment disorder on 15 October and a second appointment with the psychologist took place on 26 October when there was a significant improvement. The third and last consultation in the notes was on 9 November 2021.
Dr Endrey-Walder noted in his second report that Ms Litong suffered psychological distress as a result of the chronicity of her low back pain and the withdrawal of selected duties.
I am satisfied that there is medical evidence, in the form of the diagnosis in Dr Lim’s notes, that Ms Litong suffered an adjustment disorder as a consequence of her physical injury. The diagnosis is consistent with the Allied Health Request which contains the justification for treatment as well as the request for payment. There is no medical evidence, however, that the condition contributes to her incapacity for work.
Treatment was recommended and appeared, from the psychologist’s notes, to be successful. I am satisfied that the treatment which was provided was reasonably necessary as a result of the injury.
Blackmores should pay Ms Litong’s s 60 expenses which have been incurred for her lumbar spine injury and psychological condition.

Findings and orders

I find that Ms Litong
(a) suffered an injury to her lumbar spine which was the aggravation of a disease and that the deemed date of injury was 8 February 2021, and
(b) suffered a consequential psychological condition.
I order Blackmores to pay
(a) Weekly compensation under s 37 of the 1987 Act
i)at a rate or rates to be agreed by the parties reflecting any loss of earnings in the period from 21 April 2021 to 27 August 2021, and
ii)the rate of $210.40 per week from 28 August 2021 to 18 January 2022;
(b) section 60 expenses.
The parties have liberty to apply by email if they are unable to agree on the amount of weekly compensation payable, if any, between 21 April 2021 and 27 August 2021.

[2022] NSWPIC 237

24 May 2022