Mackey v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mackey v Woolworths Group Limited [2021] NSWPIC 438
APPLICANT:	Marion Mackey
RESPONDENT:	Woolworths Group Limited
MEMBER:	Philip Young
DATE OF DECISION:	28 October 2021
CATCHWORDS:	WORKERS COMPENSATION – Significant non-work-related injury to lower back at home during overall period of work; Held – on the facts applicant’s work generally very heavy and absence of complaint to medical practitioners before this event relevant but not necessarily determinative; Palise v ANZ Banking Group Ltd and Booth v FourMeninaPub Pty Limited considered; effects of non-work-related incident subsided over time with applicant able to resume heavy work without any complaint for about 14 months; nature of applicant’s work the main contributing factor to aggravation (etc) pursuant to section 4(b)(ii) of the Workers Compensation Act 1987; matter remitted to President for referral to Medical Assessor to determine whole person impairment.
DETERMINATIONS MADE:	1. The applicant suffered injury to her lumbar spine as a result of the nature and conditions of her work with the respondent between 2009 and 14 February 2017. 2. The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the applicant’s whole person impairment, if any, which results from aggravation, acceleration, exacerbation or deterioration of her lower back condition with deemed date of injury 14 February 2017. 3. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments filed 13 July 2012, a copy of the Reply and attachments filed 4 August 2021, a copy of the Application to Admit Late Documents and attachments filed 30 September 2021 and a copy of these Reasons for Decision.

STATEMENT OF REASONS

BACKGROUND

Marion Mackey (the applicant) is a 61 year old lady who was employed by Woolworths Group Limited (the respondent) as a stocktaker. She commenced employment in 2006 and last worked for the respondent on 14 February 2017.

The applicant brings a claim pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) alleging that as a result of injury to her lumbar spine caused or materially contributed to by the nature and conditions of her employment she suffers 22% whole person impairment.

ISSUES

The matter resolves to a causation issue, principally because of what the respondent refers to as an absence of history as well as an incident which occurred whilst the applicant was vacuuming at home on Christmas Eve, 2011.

PROCEDURE BEFORE THE COMMISSION

The matter came for conciliation and arbitration hearing on 8 October 2021. Mr S Moffet of counsel appeared for the applicant instructed by Mr T Wells, solicitor. Mr S McMahon of counsel appeared for the respondent, instructed by Mr S Patterson, solicitor.
The matter proceeded to conciliation, however, regrettably was incapable of resolution. I was satisfied that I had used my best endeavours to attempt to effect settlement, to no avail. That being so, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.

EVIDENCE BEFORE THE COMMISSION

The following documents were in evidence before the Commission:

(a)    Application to Resolve a Dispute and attachments filed 13 July 2021 (Application);
(b)    Reply and attachments filed 4 August 2021 (Reply), and
(c)    Application to Admit Late Documents filed by the applicant on 30 September 2021.

In addition to the above documents an issue arose concerning further documents sought to be relied upon by Mr McMahon. These documents included some concerning the applicant’s past medical history as well as documents completed by the applicant and medical practitioners relating to the applicant’s income protection and total and permanent disablement claims.

Submissions were made by both counsel concerning whether these documents should be admitted into evidence. They had been the subject of Directions for Production issued by the Commission on 16 August 2021.
The submissions were sound recorded, as were Reasons for Decision which ultimately disallowed the documents.
No oral evidence was given.

SUBMISSIONS

Both counsel made oral submissions concerning the substantive issues, which were sound recorded.

DISCUSSION AND REASONS

The applicant commenced employment with the respondent in 2006 and last worked on 14 February 2017. She has provided a number of statements for the purposes of these proceedings.
In her first statement dated 11 June 2019 the applicant describes the nature of her duties with the respondent from 2006 as “very heavy work”.[1] Mr McMahon in his submissions made the point that the nature of the applicant’s work was not in contest, rather, in dispute is what occurred in the applicant’s spine as a result of the work in question.
[1] Applicant’s statement at [6]
The applicant in her first statement in connection with the work said as follows:
“24. Although it was not ‘done’ to complain to the bosses we did talk among ourselves. Frequently making and hearing comments such as ‘gee my knees are sore I am sick of this…my back is aching and sore I am sick of doing this…’
25. When my back was sore I stretched from side to side to loosen up and to help relieve the pain. I observed other co-workers do the same.
26. To assist with the pain in the back I had massage from time to time. I went to different massage facilities. I went to a place at Shellharbour and massage started well before 2011. I also had some physiotherapy but this was later in time.

It is clear from the above that the applicant was referring to her work before 2011 and was doing so in the context of back pain for which she received massage on more than one occasion. It is also clear that from time to time she stretched to loosen up her back when it was sore.
The applicant states that from 2009 and following she had recurring back pain which varied at the end of a working day so that “sometimes I had really no pain and other times it was quite sore at the end of a working day”.[2]
[2] Ibid at [31]
The applicant states that an example of her back pain was a stocktake in Canberra where initially she would join the team at a restaurant for dinner but as her back “became more sore I chose to stay in my room, had a shower and had room service”.[3] The applicant recounts a conversation with her supervisor, Matthew Mikovich, who questioned the food account for room service and she replied to him that by the time she returns to the motel “I am in lot of pain with my back and I just need to shower and lie down, I can’t go out again, its too much”.
[3] Ibid at [32]
Mr McMahon pointed to the absence of any complaint by the applicant to medical practitioners before 24 December 2011 of any back pain. It was submitted that although Mason v Demasi[4] excuses in some situations the absence of recorded histories, there was additional reason to doubt the applicant’s history of back pain before 24 December 2011. First, the bone scan of 1 November 2012 records a history of lumbar spine pain for approximately 12 months which suggests that the applicant gave no history of any earlier back pain. Accounts given to Dr J Day on 14 March 2017 and Dr Abadier on 27 February 2012 and all other accounts following the “vacuum event” of 24 December 2011 focus upon the specific event of 24 December 2011. This, it was submitted, meant that Dr J Bodel in his report of 16 January 2021 had not been provided with all of the material or had not considered the material so that the history he received was completely incorrect. It was submitted that Dr Bodel did not consider the earlier treatment including the pathology and radiology in earlier 2012 and in not acknowledging these problems, Dr Bodel’s opinion is deficient on the issue of causation and cannot be relied upon.
[4] [2009] NSWCA 227 per Basten JA
It does not automatically follow that if Dr Bodel did not have all of the material before him his opinion must be set aside. That was observed by Beazley JA in Hancock[5] and relied upon by Keating P in Palise[6] where Dr Conrad did not have radiological investigations before him. The absence of a complete detailed list of medical reports in Dr Bodel’s possession goes not to whether the report is admissible under the Makita[7] principles, but goes to the weight to be given to the opinion.
[5] Hancock v East Coast Products Pty Limited [2011] NSWCA 11 at [83]
[6] Palise v ANZ Banking Group Ltd [2018] NSWCCPD 13 at [105]
[7] Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305
In the result on this issue, Dr Bodel had a history consistent with the applicant’s statements and including the “vacuuming incident” of 24 December 2011.
The lack of a contemporaneous record of back pain or symptoms in complaints to doctors is not necessarily determinative[8]. Such evidence is relevant but must be weighed with all other evidence available to the Commission[9]. As I understand the submission, the respondent accepts that the applicant’s work was “heavier” before, than after, 2011[10]. It makes common sense that on the heavier days the applicant’s back would be sore at the end of the day, while on other days there might be no back pain. The applicant’s factual evidence in this regard is entirely logical. The applicant in her statement gives a clear history of her back causing her some trouble at work before 24 December 2011 and whilst the evidence is that she did not complain about it, there is no contradictory evidence to the account she gives.
[8] Palise at [109] and [112]
[9] Ibid at [95]
[10] Applicant’s supplementary statement at page 7
There is no dispute that on 24 December 2011 the applicant was vacuuming at home when she experienced “severe and sharp pain in” the middle of her lower back.[11] Her general practitioner referred her to Dr Day and the applicant accepts that following this “vacuuming incident” she began for the first time to experience pain down her left leg.[12]
[11] Ibid at [35]
[12] Ibid at [36]
In her supplementary statement dated 18 November 2020[13] the applicant again points to recurring back pain from 2009[14] of increased frequency from 2009 to 2011.
[13] Application at p. 6
[14] Supplementary statement at [7]
Mr Moffet did not seek to downplay the significance of the vacuuming incident. He did not submit that it was somehow caused or materially contributed to by the applicant’s work between 2009 and 2011, nor earlier than this period. He did, however, make the point that the respondent has produced no evidence to counter the applicant’s evidence regarding
Mr Mikovich. Mr Moffet submitted that a careful consideration of the various consultation records detailing the applicant’s complaints to Dr Abadier and others paints a story of improvement in the applicant’s condition between 3 January 2012 and 27 November 2012.
That submission, which I accept, proceeds as follows. Dr Harkness saw the applicant on
3 January 2012 and recorded the history of the vacuuming incident and the applicant’s increasing pain into the left hip and buttock. The applicant was reviewed by Dr Abadier on
11 January 2012 and gave a history of the back pain “settling, but more in the left hip now”.[15] The applicant returned to see Dr Boules on 25 January 2012 and that doctor referred her for a CT scan and MRI of the lumbar spine. Dr Albert saw her on 28 January 2012 at which time the MRI scan showed a left L4/5 disc protrusion causing compression of the left L4 nerve root.[16] By 2 February 2021 the applicant was given prescriptions for Celebrex and Panadeine Forte and the doctor agreed with the applicant’s request for her to return to work the following week. On 15 February 2012 Dr Abadier noted that physiotherapy two days prior had helped her significantly. On 27 February 2012 the pain had “got worse again”[17] but the applicant continued to work and was next seen on 23 April 2012 for blood pressure and on
[15] AALD 30 September 2021 at p. 18
[16] Ibid at p. 19
[17] Ibid at p. 20
4 May 2012 for sunspots, but there is no further mention of back pain.
The next consultation was with Dr Abedier on 15 September 2012.[18] That consultation was for general dizziness and neck ache and other matters but there is no reference to back pain. The same might be said for the consultation on 27 November 2012, but significantly on that date Panadeine Forte was ceased.
[18] Ibid at p. 21
It is evident that the cessation of Panadeine Forte and the absence of back complaints from 27 February 2012 to 27 November 2012 support the inference that although the applicant was continuing with her work, her back was improving. This is emphasised when it is noted that the applicant consulted general practitioners on 26 April 2013, 25 June 2013, 21 August 2013, 2 November 2013 and 8 November 2013, all with no complaint of back pain.
The next visit of significance is to Dr Abedier on 13 March 2014. That doctor noted that her back pain had been exacerbated again and is radiating to her left leg. Throughout the period of 27 December 2012 to 13 March 2014 the applicant was performing heavy work without complaint of back pain, so that it may be inferred that the applicant was coping with her back condition without difficulty and without medication. The applicant continued with her work after March 2014 until, as suggested by the applicant in her statement, on 14 February 2017 she told a Regional Supervisor that she could not work anymore.[19]
[19] Applicant’s first statement at [48]
The reports of Dr J Day confirm the onset of radiating left leg pain from 24 December 2011 or shortly thereafter. Dr Day in his report of 23 October 2012 recorded fleeting back pain three weeks previously but noted that radicular symptoms had settled and her current symptoms were more consistent with facet joint problems.
I accept Mr Moffett’s submission that the applicant’s credit cannot be in issue because there is no positive evidence contradicting her account of her symptoms. The respondent does not take issue with the applicant’s account of her work, nor was there evidence concerning her complaint to Mr Mikovich, nor any contradiction of her account of being unable to go to dinner with team members in Canberra. In terms of Dr Bodel’s opinion in his report of 15 January 2021, I note that there was a submission by Mr McMahon that the history was incorrect, however, it seems tolerably clear from an analysis of the several consultations between 27 February 2012 and 13 March 2014 that until the latter date the applicant’s back condition in terms of L4/5 had improved. This history has not been specifically set out by
Dr Bodel but it is not inconsistent with Dr Bodel’s conclusion. Dr Bodel was aware of the vacuum incident and reported[20] in relation to history, as follows:
“…she suffered a disc injury in the lumbosacral junction. Clinically this occurred as a result of the nature and conditions of her work in general. She has degenerative disc disease which has been aggravated, accelerated, exacerbated and deteriorated by the nature and conditions of work in general. There may have been some further additional structural damage with the vacuum cleaner episode at home, but she was symptomatic prior to this and her symptoms deteriorated after this”.
[20] Application at p. 75

In terms of his diagnosis, Dr Bodel[21] refers to aggravation, acceleration, exacerbation and deterioration (“aggravation etc”) to the disease process at L4/5, however, it is clear that he also diagnosed disc injury at the lumbosacral junction (i.e., at L5/S1). Although his expression of the specific pathologies requires some decoding, it is clear that he is dealing with a history of intermittent back ache over time caused or materially contributed to by the nature and conditions of the applicant’s work. Unravelled, the conditions are intermittent occasional back pain prior to 24 December 2011, a fairly significant incident involving protrusion at L4/5 and radiating left lower limb on 24 December 2011, a settling of the applicant’s problems between late February 2012 and March 2014, a recurrence of these problems in 2014, and then continued work until 27 January 2017 when Dr Day records that the applicant’s back pain had been troublesome for the past few months. The final contributor appears to be mentioned by Dr Day in his report of 10 February 2017 where he records back pain and pain radiating to the legs (both) “as a result of stocktaking this week”.
[21] Ibid
The respondent in relation to section 4 (b) (ii) of the 1987 Act submitted that the applicant’s employment was not the main contributing factor to the aggravation (etc) of any disease. There was a concession by the respondent (properly made) that authorities such as Cant[22] and Booth[23] were relevant. Cant in my view supports the proposition that the employment must be the “main contributing factor” to the aggravation (etc), not the “main contributing factor” to the underlying pathology. Booth supports the view that in (aggravation etc) cases involving section 4 (b) (ii) there must be evidence that there was some underlying disease which was subjected to aggravation (etc).
[22] Cant v Catholic Schools Office [2000] NSWCCR 37 per Burke J
[23] Booth v FourMeninaPub Pty Limited [2020} NSWCA 57
I return to the objective evidence from consultation records to assist in considering the Cant criteria. The facts are that between late February 2012 and March 2014 the applicant engaged in heavy work but made no complaints of back pain. In February 2017 the applicant complained of back pain in the context of stocktaking over a week. There is no evidence of any other contributing factors and the complaint and connection are consistent with work being the main contributing factor to the aggravation (etc).
In relation to Booth, radiological results from 2012 demonstrate not only specific pathology, but also highlight general degenerative changes and this supports Dr Bodel’s conclusion (regardless of what Dr Bodel had before him) of aggravation etc within the meaning of section 4 (b) (ii)[24].
[24] See, for example, bone scan of 1 November 2012 at Application p38
In the result, in summary the applicant succeeds in establishing injury arising out of or in the course of her employment in terms of section 4 (b) (ii) of the 1987 Act for the following reasons:
(a)    the applicant’s statements concerning onset of pain and symptoms are not contradicted by the evidence;
(b)    the absence of a complaint of back pain to general practitioners is explained by the applicant in terms of her having undergone back massages before December 2011;
(c)    whilst the incident of 24 December 2011 was of some significance, her symptoms resolved such that there was no complaint to her general practitioners from
15 February 2012 until 13 March 2014, thereby suggesting that much of the applicant’s pain had either resolved or was under control;
(d)    throughout the period from 2012 to 13 March 2014 the applicant was doing heavy work and in the absence of any other cause, I infer from the applicant’s evidence that this work was the main contributing factor to the exacerbation of her back pain recent to 13 March 2014, and
(e)    the applicant continued with her work from 2014 until 14 February 2017 and in the week prior to 10 February 2017 had suffered back pain and pain radiating to her legs as a result of stocktaking.

FINDINGS

The applicant suffered injury to her lumbar spine as a result of the nature and conditions of her work with the respondent between 2009 and 14 February 2017.

The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the applicant’s whole person impairment, if any, which results from aggravation, acceleration, exacerbation or deterioration of her lower back condition with deemed date of injury 14 February 2017.

The President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments filed 13 July 2012, a copy of the Reply and attachments filed
4 August 2021, a copy of the Application to Admit Late Documents and attachments filed 30 September 2021 and a copy of these Reasons for Decision.

[2021] NSWPIC 438

28 October 2021