Loding v Interpark Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Loding v Interpark Australia Pty Ltd [2023] NSWPIC 590
APPLICANT:	Khames Loding
RESPONDENT:	Interpark Australia Pty Ltd
MEMBER:	Lea Drake
DATE OF DECISION:	7 November 2023
CATCHWORDS:	WORKERS COMPENSATION - The applicant sought a finding that his lumbar spine had been injured in an accident in June 2021; the respondent opposed the payment on the basis that the applicant’s treating doctors had not noted any lumbar spine injury but had rather concentrated on and treated his neck injury; finding for the applicant on the basis of the complaints of back injury made to the respondent’s IME very closely following the accident; Held – medical treatment sought found to be reasonable in all the circumstances.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant injured his lumbar spine by way of a frank injury in a motor vehicle accident of 3 June 2021 (the accident) whilst in the respondent’s employ. This injury aggravated a pre-existing underlying lumbar spine condition. 2. The applicant’s current need for treatment for lumbar pain arises from that injury. 3. I am satisfied and find that treatment recommended by the applicant’s treating specialist Dr Nair, for L4/5 and L5/S1 pulse team radiofrequency as well as epidural corticosteroid injections, is reasonable in all the circumstances. The Commission Orders: 4. There will be an award for the applicant for an injury sustained to his lumbar spine in a motor vehicle accident on 3 June 2021. 5. The respondent is to pay for future ongoing treatment for this injury, including L4/5 and L5/S1 pulse team radiofrequency as well as epidural corticosteroid injections recommended by Dr Nair, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Loding (the applicant) was injured in a motor vehicle accident which occurred in the course of the applicant’s employment with Interpark Australia Pty Ltd (the respondent) on 3 June 2021 (the accident). His vehicle was hit on the driver’s side by another vehicle. The ambulance was called by his employer and he was taken to Concord Hospital.
The applicant seeks payment of medical expenses for treatment of an injury to his lumbar spine which he alleges was one of the suite of injuries suffered by him in the accident.
The respondent has accepted liability for the applicant’s neck injury but disputes that the applicant sustained an injury to his lumbar spine in the accident and, in addition, the treatment recommended by the applicant’s treating specialist is not reasonable in all the circumstances.

MATTERS IN DISPUTE

The following issues remain in dispute:
(a)    did the applicant injure his lumbar spine in the accident;
(b)    is the applicant’s present lumbar spine symptomology the result of an injury sustained in the accident, and
(c)    is the applicant’s proposed medical treatment reasonable in all the circumstances.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

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

There was no oral evidence.
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to the ARD (Reply) and attached documents.

The applicant’s submissions

The applicant alleges that the injury to his lower back arose from the accident. He seeks an order that the respondent pay future medical expenses related to his workplace injury including surgery, being L4/5 and L5/S1 pulse team radiofrequency as well as epidural corticosteroid injections as proposed by Dr Nair.
The applicant has a history of back pain prior to this incident. In 2019 he suffered from intermittent lower back pain and an MRI in 2019 revealed a minor disc protrusion and compression on the left side of his lower back. He commenced stretches and exercises and improved his posture to reduce pain and improve mobility. He states that that occurrence had no ongoing impact on his ability to work.[1]
[1] ARD page 1 paragraph 7.
The applicant commenced work with the respondent in 2007. He worked full-time, up to 45 hours per week, with the respondent until the accident and, in addition, for the five years prior to his accident performed casual weekend work for a company called DiDi.
The applicant’s evidence is that he experienced immediate sharp searing pain in his neck, right shoulder and lower back following the accident.[2] When he arrived at Concord Hospital his right shoulder and lower back were examined by a doctor. The doctor explained to him that the main source of his pain was his neck. An X-ray of his neck was taken and he was prescribed pain medication.[3]
[2] ARD page 2 paragraph 13.
[3] ARD page 2 paragraph 15.
In his statement the applicant outlined his subsequent extensive medical treatment which eventually led to a recommendation for spinal surgery from Dr Nair and Dr Abraszko as well as a recommendation for assistance with home care. The applicant has had an anterior cervical decompression fusion at C6/7 in April 2022 with limited success. He has developed severe pain in his lower back and radiculopathy in his left leg. His evidence is that that back pain is now worse than the neck and right arm symptoms he had been treated for to date.
At present his main concern regarding his physical condition is his lower back. It restricts his ability to engage in everyday life because he suffers from debilitating pain when sitting or standing for extended periods.
He was referred to Dr Bodel, an Independent Medical Examiner (IME), who was unable to determine any whole person impairment because his condition had not stabilised.[4]
[4] ARD page 5 paragraph 28.
The applicant currently resides in Western Australia. He is looking for another general practitioner (GP) and specialist to oversee his care. He currently has telehealth consultations with Dr Hussaini and consultations with his spinal surgeon Dr Nair when necessary. He uses medication, specifically Moxilin and APX-paracetamol/codeine.[5]
[5] ARD page 6 paragraph 32.
The disabilities from which he alleges he suffers as a result of this motor vehicle accident[6] are detailed in his statement.
[6] ARD pages 7 and 8 paragraph 33.
The applicant’s counsel refers to and relies on the report of Dr Quain,[7] an IME, who saw the applicant for the respondent insurer at the end of July 2021. Dr Quain took a detailed history from the applicant.
[7] Reply page 66.
This history included detailed complaints about all lumbar spine symptomatology, the involvement of his previous back symptomatology and the likelihood of the motor vehicle accident having contributed to an exacerbation of that pre-existing condition.
Counsel submitted that this report provided the first real attempt by any medical practitioner to take a detailed history from the applicant regarding the accident and the applicant’s consequent symptomatology.

Respondent’s submissions

The s 78 Notice issued by the insurer sets out the respondent’s grounds for refusal of liability:
“Upon requirements for the clarification of treatment and injury, we referred to Dr Stephen Quain (Specialist Orthopaedic Surgeon) who conducted an Independent Medical Examination (IME) through video conference on 29 July 2021 with a report completed on the same date. As Dr Quain's examination was limited due to it being through a video conference, he was not able to examine your lumbar spine but noted that you exhibited difficulty with moving in and out of a chair requiring assistance.
During his examination, he referred to the MR Scan performed on 2 December 2019 which showed an L4/5 disc protrusion with probable compression on the L4 nerve root. Dr Quain advised that this is pre-existing, most likely a degenerative change which has not been aggravated by the motor vehicle accident.
Dr Quain identified an exaggeration of symptoms in reference to the lumbar spine, and he reiterrated again that alleged incident has not caused any significant aggravation to the lumbar spine. Upon your acknowledgement, Dr Quain confirmed you had on and off back pain for several years before the incident on the 3 June 2021.
Dr Quain advised that employment was the substantial contributing factor to the neck strain, but again advised that the pathology related to the lumbar spine was pre-existing and no aggravation was experienced due to the motor vehicle accident. He went on to state that at least 50% of the lumbar spine injury is pre-existing, and furthermore does not believe that the mechanism of the accident as a side-on collision has indeed aggravated it.
Based on the evidence above, we do not agree that employment was the substantial contributing factor your lower back/lumbar spine injury as per Section 9A of the 1987 Act.
We do not agree that your injury was received in the course of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
Lastly, we do not agree that you have an entitlement for medical or related treatment for your lumbar spine injury because medical, hospital or rehabilitation expenses are not reasonable necessary as per the requirements of Section 59 and 60 of the 1987 Act.”
(my emphasis)
Counsel for the respondent submitted that there was no mention of an injury to the applicant’s back in the notes of the treating specialist during the period following the accident. This is accurate. The overwhelming emphasis by the applicant’s treating doctors was on his neck injury which was the injury most clearly identified as the source of pain for the applicant and which eventually led to a cervical fusion.
Dr Quain considered that the applicant’s back pain was referable to a pre-existing degenerative condition and doubted that the accident could cause the low back injury alleged by the applicant.
The respondent also made quite persuasive submissions concerning the failure of the treating doctors to be informed about and deal with the input of the 2019 MRI and its effect on the diagnosis of causation related to the applicant’s lumbar spine.
In relation to the proposed treatment respondent’s submission was that not all conservative treatment had been explored and that therefore the proposed treatment was not reasonable in all circumstances.

CONSIDERATION

I am satisfied that the applicant was involved in a very serious accident, arising out of which a back injury was a real possibility, if not a probability.
I am not persuaded that the absence of a finding of an injury to the applicant’s lower back in the Discharge Summary of Concord Hospital is persuasive of the proposition that the applicant did not either injure his back in the accident or did not report it to the treating doctors in Accident and Emergency.
I am positively persuaded that the possibility of a back injury was considered by the Accident and Emergency doctors. As submitted by the respondent’s counsel, they checked for an array of possibilities as a matter of procedure. They checked his straight leg raising, amongst other things, because a back injury was a possibility.
In any event I am also satisfied that a busy Accident and Emergency room doctor was likely to examine, concentrate on, consider and diagnose the most pressing and obvious injury, which was the applicant’s neck.
I am persuaded that the applicant’s treating doctors also concentrated on the applicant’s most pressing injury, the neck injury, which eventually led to a fusion. There is nothing in this preoccupation which discounts the possibility of a coexisting injury to the applicant’s lumbar spine. It reflects the priority the applicant gave to his neck symptoms and the pain he was suffering as a result.
Whilst the applicant’s treating doctors did not spend any time or attention on the possibility of an injury to applicant’s lumbar spine occurring in the accident, the respondent’s IME spent a great deal of time focussed on this issue when he examined the applicant on 29 July 2021, seven weeks after the accident. Various extracts from the report of Dr Quain of the same date are set out below:
“HISTORY OF INJURY
Mr Loding stated that whilst driving his car during the course of his duties near Olympic Park, another driver apparently performed a u-tum and hit his car on the right-hand side. He said he was wearing a seatbelt. He called his boss and apparently his boss summoned an ambulance and as previously stated, he believes he was taken to Concord Hospital where he was assessed. X-rays were performed of the cervical spine and he was discharged. He was given analgesics and referred for follow-up to his general practitioner.
Subsequently he has undergone physiotherapy (about twice weekly) and he has been using Panadol and anti-inflammatories. He complains of severe neck pain, worse if he is sitting for greater than 40 minutes. He claims it is also worse if he attempts to look down (flexion) and on rotation to the right, but not to the left. The pain radiates into the shoulder blade area, but there were no spontaneous complaints of any radicular symptoms into either arm. He also complains of severe back pain radiating into the buttock. He states his walking tolerance is limited to about ten minutes and he has difficulty with some activities such as getting off the toilet seat, with his wife required to assist him.
PAST HEALTH
In his past health, he states he has had low back pain on and off for about five years but allegedly never as severe as it has been since the accident. He states he has no other medical conditions. There is no previous history of neck injury.
…
MR scan performed on 2 December 2019 at Mt Druitt Hospital shows a left-sided L4/5disc protrusion with marked left L4/5 foraminal narrowing and probable compression on the left L4 nerve root.
Note this is clearly a pre-existing, probable degenerative change and I do not believe has been significantly aggravated by the alleged motor vehicle accident.
…
There is exaggeration and I do not believe the alleged incident has, as mentioned above, caused any significant aggravation to his lumbar spine.
…
Is there evidence of a pre-existing condition? If so, has this condition been aggravated/exacerbated by Khames's recent accident?
As noted several times above, there is evidence of a pre-existing condition. I do not believe the mechanism of the accident with a side-on collision has aggravated his lumbar spine.
…
Mr Loding did not acknowledge this today but as stated, he did agree that he had had low back pain on and off for several years and the MR findings of the lumbar spine are at least six months before the most recent incident.
…
Are Khames's injuries and/or symptoms entirely related to the incident on 3.6.21? If no, how much of their current presentation do you attribute to:
a. A pre-existing condition
b. Previous injury
c. Subsequent events in their life/lifestyle activities.
At least 50% is attributed to a pre-existing condition from the lumbar spine. Regarding previous injury, the same applies. Subsequent events and lifestyle activities are not related.”[8]
(my emphasis)
[8] Reply page 22.
Dr Quain recorded the applicant’s complaints in relation to the lumbar spine. However, he determined that the applicant’s lumbar spine condition was not aggravated in the accident.
The history taken by the claim makes it clear that on 29 July 2021 the applicant was complaining of back pain arising from the accident on 3 June 2021. This history of complaint to Dr Quain supports the applicant’s evidence that he suffered from back pain from 3 June 2021 onwards.
Dr Quain dealt with the applicant’s pre-existing lumbar spine condition and his current complaints. He concluded that there was no aggravation of the applicant’s lumbar spine condition.
I do not accept this conclusion. It is clear that the applicant had symptoms prior to the accident which did not cause any incapacity for work. At the time of the accident the applicant was working a full-time job supplemented by a part-time job.
Dr Quain does not provide any explanation for his conclusion that there was no aggravation to the applicant’s underlying lumbar spine condition. He may have been persuaded to this conclusion by the fact that he considered the applicant was exaggerating.
Dr Quain’s examination was conducted by tele-health. He did not have the benefit of a physical examination. I am not persuaded that I should prefer the opinion of a doctor who examined the applicant remotely on one occasion over the opinion the specialist who has had the early care of the applicant and can assess the applicant’s condition and medical needs in a more informed fashion.
I am satisfied that following the accident the applicant was complaining of back pain brought on by the accident, even though his treating specialists and the accident and emergency doctors concentrated on his complaints of neck pain.
I find that the applicant injured his lumbar spine by way of a frank injury in the accident which aggravated an underlying condition and that his current need for treatment arises from that injury.
I am satisfied and find that treatment recommended by the applicant’s treating specialist is reasonable in the circumstances. I have taken into account the applicant’s consistent complaints of pain and the extensive treatment he has underground to alleviate his symptoms. I am satisfied that recommendation of Dr Nair is a reasonable next step in the treatment of the applicant’s lumbar spine symptoms.

SUMMARY

For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 590

7 November 2023