Mackinney v The Executive Inn Pty Ltd

[2023] NSWPIC 311

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Mackinney v The Executive Inn Pty Ltd [2023] NSWPIC 311

APPLICANT:

Margaret Therese Mackinney

RESPONDENT:

The Executive Inn Pty Ltd

Member:

John Wynyard

DATE OF DECISION:

29 June 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments pursuant to section 37 after payment ceased on basis of respondent medicolegal report; whether accepted back injury had resolved; whether discrepancy in applicant’s case affected her satisfying onus of proof; Held – respondent’s medico-legal opinion logically flawed; aggravation of asymptomatic disc disease had not ceased; alleged discrepancy of no weight; award for the applicant.  

determinations made:

The Commission determines: 

1. The respondent will pay the sum of $360 per week from 19 July 2022 to 3 January 2023 pursuant to s 37of the Workers Compensation Act 1987 (the 1987 Act). 

STATEMENT OF REASONS

BACKGROUND

1. Margaret Therese Mackinney, the applicant, seeks continuing weekly compensation from 19 July 2022 to date and continuing.

2. Dispute notices were issued on behalf of the respondent, The Executive Inn Pty Ltd.

3. The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    Has the accepted back injury resolved?

   (b)    If not, is Ms Mackinney entitled to weekly payments of compensation?

   (c) If so, what is the extent of Ms Mackinney’s entitlement pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act)?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The parties attended a teleconference on 6 March 2023. The applicant was represented by Mr Mario Bechelli of Messrs Whitelaw McDonald, solicitors. Mr Mark Van der Hout from Messrs BBW Lawyers appeared for the respondent.

2. 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

PRELIMINARY

1. After a discussion at teleconference I ordered that the matter be dealt with by way of written submissions.

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

   (a)    ARD and attached documents, and

   (b)    Reply and attached documents.

   Written submissions

   (a)     respondent dated 31 March 2023;

   (b)     applicant dated 14 April 2023, and

   (c)     respondent in reply dated 24 April 2023.

Oral evidence

1. No application was made in relation to oral evidence.

FINDINGS AND REASONS

Evidence

Ms Mackinney

1. Ms Mackinney made a statement dated 16 November 2022. She outlined her work history, noting that she left school at age 16 and worked variously as a shop assistant, a bar attendant, and after taking eight years off while she had her three children, further bar work for eight years with a bowling club from 1997. She then worked over a four-year period as a shop assistant.

2. She commenced employment in 2002 with the respondent as a housekeeper.[1] Her duties were described at [9] of her statement:

   “9.     My duties included making beds, which involved changing sheets and blankets which necessitated lifting the mattresses In order to flt the sheets, cleaning bathrooms and showers which involved working on my hands and knees and reaching high when cleaning the shower glass and also cleaning the air conditioning units and balconies once per week which involved sweeping, dusting and mopping.

   10.    I had to push a trolley which contained things like sheets, pillowcases and towels and mops and brooms. I carried a bucket which contained cleaning agents. The trolleys weighed approximately 50 kg when loaded and were difficult to push on the carpet.”

   [1] This date is probably incorrect. Both Dr Hopcroft and Dr Harrington noted that she commenced in about 2016 or 2017, and Ms Mackinney’s account of her work history is inconsistent with this date. However, nothing turns on this anomaly.

3. She suffered injury to her back whilst she was making up a foldout bed on 7 July 2020. She was attempting to pull a handle to fold the bed back into a lounge position. The handle jammed, and as she pulled a second time she felt pain in her back. She worked another 30 minutes to the end of her shift. She has not worked since.

4. Although Ms Mackinney did not refer to her physical condition at the time of her accident, she was then in her 60s, and was of slim build. Prior to her injury she had been an active sportswoman playing competition badminton twice-weekly, attending a gym twice-weekly and using her backyard pool during the summer months. She would regularly walk for 1.5 hours, she made her own lawns and maintained her gardens.

5. Ms Mackinney consulted Dr Aus, recommended to her by the respondent’s Human Resources Manager, Mr Peter Finch. At [16] Ms Mackinney stated that she was referred by Dr Aus to a pain management specialist, Dr Wiliem Volschenk, and to a neurosurgeon, Dr Richard Ferch.

6. Dr Alan Hopcroft, who had been retained as Ms Mackinney’s medico-legal specialist, also administered a diagnostic therapeutic injection on 30 August 2022. She said at [15]:

   “15.   Dr Hopcroft rang me on the same day as I had the diagnostic therapeutic injection which was on 30 August 2022 and on that day after having the injection, I was pain free. However, the following day the pain returned as usual. l have not had any further injections and the pain has continued.”

7. Ms Mackinney did not refer to her estimate of her capacity to work, simply stating that she had not worked since the date of the accident. It was agreed that she had received payments of weekly compensation until 19 July 2022, when they were discontinued following the issue of a s 78 notice of 7 June 2022.

Radiology

1. An MRI scan was taken on 31 July 2020.[2] The report noted:

   “At L 1/L2 there is a posterior anular tear and also a disc extrusion located posteriorly to the left of the midline which migrates superiorly through the epidural space for about 1cm.

   At L.2/L3 and L3/L4 the discs are dehydrated but there are no signs of significant bulges or herniations.

   At L4/L5 there is a left sided posterior annular tear associated with a mild foraminal protrusion. There are no signs of severe spinal canal or foramin.al stenosis.

   At L5/S1 the intervertebral discs show normal morphology and signal intensity.

   Comment:

   Mild degenerative changes of the lumbar spine as per the description above. Highlight is given to the disc extrusion at L 1/L2 and to the discopathy at L4/L5.”

   [2] Reply page 38.

2. A further MRI scan was taken on 11 November 2021:[3]

   “T12/L 1: No compressive discopathy or foraminal narrowing.

   L 1-L2: No compressive discopathy or foraminal narrowing. Mild disc desiccation.

   L2-L3: No compressive discopathy or foraminal narrowing.

   L3-L4: No compressive discopathy or foraminal narrowing.

   L4-L5: Mild broad-based disc bulge, without evidence of compressive discopathy or foraminal narrowing. Mild disc desiccation.

   L5/S1: No compressive discopathy or foraminal narrowing. Minor facet joint degenerative change.

   Impression

   No significant compressive discopathy or foraminal narrowing is demonstrated.”

   [3] Reply page 41.

3. On 30 August 2022, at the behest of the medico-legal expert Dr Hopcroft, a CT guided injection into the left sacroiliac joint was performed.[4] The radiologist reported:

   “Details of the procedure were explained to the patient and Informed consent obtained. Using an aseptic technique with CT guidance and local anaesthesia, a needle was inserted into the left sacroiliac joint. Intra-articular positioning was confirmed. Subsequently the joint space was injected with a solution of local anaesthetic and corticosteroid.

   This site was Injected as requested after correlation with patient's symptoms and previous imaging. Follow up with patient two weeks post Injection Is recommended. If symptoms do not resolve and pain perslsts1 they may benefit from review by the multidisciplinary team at Alto Specialist.”

   [4] ARD page 55.

Dr Richard Ferch

1. Dr Ferch, neurosurgeon, reported to Dr Aus on 3 September 2020. He took a consistent history of Ms Mackinney’s accident and noted that on neurological examination no abnormality was detected, apart from there being an absence of ankle jerks on both sides. He reviewed an MRI scan (presumably that of 31 July 2020 ) and noted the presence of mild degenerative changes at L4/5 with “a suggestion of” a left-sided intradiscal tear. He thought there was no “real neural compromise.” He recommended treatment by way of a transforaminal steroid injection.

Dr Willem Volschenk

1. Dr Volschenk, specialist pain medicine physician, supplied four reports to Dr Aus. On 22 October 2020 he took a consistent history of Ms Mackinney’s injury. He noted that physical therapy had “plateaued” without reducing her pain. He recorded that Ms Mackinney’s pain was in her lower back, was constant and was exacerbated by sitting for long periods of time and walking. Ms Mackinney was unable to do any house work and she complained of pain “mostly radiating in her left leg which develops paraesthesia up to her knee.”

2. In his next report dated 6 May 2021, Dr Volschenk reported that Ms Mackinney had undergone a medial branch block from L4 to S1 at Hamilton Day Surgery on that day. Dr Volschenk considered that because Ms Mackinney’s lower back pain had reduced from 8/10 to 3/10, there had been a positive medial branch block. Dr Volschenk requested to proceed with a “medial branch block, medial branch radiofrequency neurotomy”, which would give between nine – 15 months of pain reduction.

3. Dr Volschenk reported again on 16 August 2021. Because of Covid protocols, the consultation had been by telephone. Dr Volschenk said that Ms Mackinney did not have any significant leg pain and all her right sided lower back pain had abated. He said:[5]

   “Unfortunately, Margaret still has persistent left sided lower back pain which she finds difficult to manage…”

   [5] Reply page 36.

4. On 21 March 2022 Dr Volschenk again reported to Dr Aus. He said:[6]

   “Margaret has severe lower back pain, and she had some radiation in her left leg up to her knee. Her walking and sitting tolerance has decreased approximately 15 minutes. She has reverted to wearing an external corset to aid her poor core stabilisers…. Margaret has a long road ahead of her with rehabilitation through a exercise physiologist…. In the longer term I do believe Margaret would be a candidate for a spinal cord stimulator.”

   [6] Reply page 37.

Dr Chris Harrington

1. Dr Harrington, orthopaedic surgeon, first reported to the insurer on 19 November 2020.[7] He took a consistent history of Ms Mackinney’s history, noting that following the accident, her back pain was “associated with radiating pain down the back of her left leg, to the level behind her knee.” Dr Harrington noted that pain relief and anti-inflammatory medication had been tried but ceased because of side effects. He noted that prior to the injury Ms Mackinney enjoyed walking and staying active and that she denied any trouble with her back in the past.

   [7] ARD page 13.

2. Dr Harrington noted complaints of lower lumbar pain with radiation down the left leg. He noted that Ms Mackinney did not describe sciatica. On examination he noted that Ms Mackinney was “a fit looking woman of stated age with a slim build.” He noted further that Ms Mackinney “walks stiffly and cautiously, like a tin [soldier].”

3. Dr Harrington noted that the imaging of the lumbar spine dated 31 July 2020 indicated “multi-level disc disease which would be considered normal for her age.” His diagnosis was of acute back pain +/- soft tissue injury. He said:

   “We know that 80% of people experience an episode of acute back pain during their lifetime, most of which get better with simple treatment.”

4. Dr Harrington found the mechanism of the injury to be consistent with the cause of “acute back pain.” He said:

   “I believe employment is a substantial contributing factor for the onset of acute back pain. This is borne out by the lack of symptoms in the past and the mechanism of injury described.

   Whist it is possible that any one of these lumbar levels could have become

   symptomatic at any time or place, Irrespective of employment, she does have a very physical Job for a 62 year old woman and the mechanism of Injury described Is consistent.”

5. Dr Harrington also considered that the injury could be considered the aggravation of pre-existing pathology which was previously asymptomatic, in which case he was satisfied that her employment was the main contributing factor to her injury. He was satisfied that Ms Mackinney remained symptomatic and that the aggravation had not ceased. He said:

   “… Given her age, we know that things take a bit longer to settle down and I would estimate a timeframe of six months from the incident in July.”

6. Dr Harrington found Ms Mackinney to be unfit for preinjury duties, and that she had a limited capacity for work up to 15 hours per week with such restrictions that he said that her limited capacity “really only leaves dusting and wiping surfaces or replacing towels etc. Unfortunately it isn’t the type of work where permanent modified duties can be implemented and there is probably no supervisory role.”

7. Dr Harrington expanded on that opinion by saying:

   “I believe an adequate timeframe for the current episode to settle down is six months. However Ms Mackinney should understand that her back it may not return to normal. I am sceptical as to whether she will have the confidence and stamina in her lumbar spine to resume pre-injury duties…

   … The job description provided as a housekeeper for someone in their 60’s with a slim build certainly isn’t ideal. The main barrier for preinjury duties would be the percentage of people who never completely settled down after an episode of acute back pain. The best recommendation would be avoidance of activities that could cause an aggravation.”

8. Dr Harrington thought that with two months of physical activity through exercise physiology or hydrotherapy, “the work-related injury would have ceased.”

9. On 13 January 2022, Dr Harrington reported again to the insurer. He noted that since he last saw her Ms Mackinney had been treated with a bilateral medial branch block on 6 May 2021 followed by a further branch block on 16 July 2021, both administered by Dr Volschenk. Dr Harrington reported that Ms Mackinney did not think that treatment had been “efficacious.”

10. Ms Mackinney continued to complain of lower lumbar pain mainly left-sided and, of late, increased pain in the left leg as far as the knee. She was wearing a back brace with rigid supports. Dr Harrington again noted that there had been no trouble prior to the injury but that for the last 18 months she had not been able to stay active as she used to. He noted that she was unable to do the heavy house work or any yard maintenance, and that her walking tolerances were of 10 minutes duration on flat ground. She could not lift her
    11-week-old grandchild and was unable to attend her niece’s wedding in Sydney because she could not tolerate the drive nor could she stand during the ceremony.

11. Dr Harrington noted that the MRI dated 31 July 2020 showed changes at L1/2 and L4/5. He said that it was “common for people to focus on the word ‘tear’.” He said that the up-to-date MRI of 11 November 2021 was consistent with pre-existing age-related changes without any untoward features. He again acknowledged that Ms Mackinney had developed radiating pain down her left leg but confirmed that there was no radiological or clinical evidence to support radiculopathy. On this occasion Dr Harrington’s diagnosis was:[8]

    “The diagnosis would be consistent with mechanical back pain. Although she may have suffered an episode of acute back pain, this would be considered a temporary aggravation injury at work in July 2020. The current presentation is due to the intrinsic nature of her spine….

    … She suffered an acute episode of back pain +/-temporary aggravation. She now presents with mechanical back pain due to the intrinsic nature of her spine rather than a single event 18 months ago.

    …

    It is possible that assembling the stubborn sofa bed caused an aggravation of underlying pathology however' any work related aggravation bas ceased”.

    [8] ARD page 23.

12. Dr Harrington confirmed his advice that Ms Mackinney was not fit for her preinjury duties. He said:

    “She is a 63-year-old with mechanical back pain which prevents her from returning to commercial cleaning in any capacity.

    Theoretically, she might be fit for part-time sedentary duties which are very light and nature however this would involve retraining and rehabilitation back into the workforce, which is unlikely to be successful.”

37.  Finally, Dr Harrington concluded by saying:

“Ms Mackinney should understand that her symptoms are due to pre-existing changes however there is no serious spinal pathology which would suggest any significant deterioration.”

Dr Alan Hopcroft

1. Dr Alan Hopcroft, orthopaedic surgeon, supplied two reports as medico-legal expert for Ms Mackinney. On 10 August 2022 he reported a consistent history of the subject accident.

2. Dr Hopcroft noted Ms Mackinney’s subsequent treatment, including the imaging of 31 July 2020. Dr Hopcroft noted that Ms Mackinney had undergone three series of injections on 6 May 2021 bilaterally from L4 to S1 and on 6 May 2021 to the right side of the same discs. Dr Hopcroft noted that Ms Mackinney had what he described as left leg “sciatica,” and he thought that the right sided injection procedure apparently ignored that complaint. In any event, Dr Hopcroft noted that the injections would give Ms Mackinney about two hours improvement before the pain returned. He noted the hydrotherapy program, again commenting that whilst the heated pool improved the back pain, as soon as Ms Mackinney cooled, the pain returned.

3. Dr Hopcroft noted that Ms Mackinney had been seen by Dr Harrington earlier on 19 November 2020, and that his expectation that the problem would result in six months had not been fulfilled. Dr Hopcroft noted Dr Harrington’s view that the work-related injury had resolved, notwithstanding that the three sets of injections had not been successful.

4. Dr Hopcroft then considered the imaging of 11 November 2021 and advised that the “possible sclerosis” within the partially imaged superior sacroiliac joints was confirmed on clinical examination by Dr Hopcroft. Dr Hopcroft noted that Ms Mackinney was told by her insurance company agent/case manager that future payments of compensation of any description would not be paid after Dr Harrington had reported.

5. Dr Hopcroft noted complaints of ongoing and significant low back pain, and that Ms Mackinney had restriction of movement, radiation of pain down her left leg to the knee and marked pain localised over the left sacroiliac joint. Her standing tolerance was 15 minutes and she experienced shooting pain that “literally stops her in her tracks.”

6. Dr Hopcroft noted Ms Mackinney’s prior active lifestyle and sporting activities prior to her injuries which were referred to above at [19] hereof.

7. Dr Hopcroft diagnosed “a significant injury to her lumbar spine...” He found that Ms Mackinney suffered left sided sciatica but he was also concerned that she had pathology in her left sacroiliac joint. He recommended a diagnostic hydrocortisone and local anaesthetic injection into the left sacroiliac joint.

8. In his subsequent report of 1 September 2022 Dr Hopcroft reported that the recommended diagnostic therapeutic injection into the left sacroiliac joint had been undertaken on 30 August 2022. He said he had yet to hear whether a good result had been obtained. He said:[9]

   “However, I can now add that I have followed this patient up with a phone call and she is able to advise that the diagnostic therapeutic injection into her left sacroiliac joint has worked perfectly and she has no pain in her back and is very happy with the outcome.”

   [9] ARD page 48.

1. Dr Hopcroft concluded that the subject accident “not only damaged her lumbar spine but also severely wrenched the sacroiliac joint”, which had contributed significantly to her ongoing pain syndrome. He advised that further injections might be required as the outcome of such injections was “variable”.

2. Dr Hopcroft’s advice as to causation was that the subject injury had caused ongoing significant spinal dysfunction and that any attempt to return to her pre-injury work with its associated repetitive bending and lifting would compromise her condition.

3. His opinion was that Ms Mackinney was suffering from lumbar spondylosis with a secondary non-identifiable radiculopathy, and a wrenching injury to her sacroiliac joint which aggravated her pre-existing symptomatic osteoarthritis of her sacroiliac joints.

SUBMISSIONS

Respondent

1. The respondent’s submissions were written by Mr Mark Van der Hout. He confirmed that the pre-injury average weekly earnings were $450 (as was pleaded in the ARD form) and noted that Ms Mackinney was employed on a part time basis. He noted that the back injury was admitted, and surveyed the treatment Ms Mackinney then received.

2. Mr Van der Hout noted that the MRI of 31 July 2020 had revealed pathology ay L1/2 and L4/5. He noted further that Ms Mackinney had been assessed by Dr Ferch in November 2020 and that, from a neurological standpoint, there was no significant structural injury.

3. Mr Van der Hout referred to the opinion of Dr Harrington of 19 November 2020 and the diagnosis that there had been an aggravation of pre-existing pathology for which employment had been a substantial contributing factor, and which aggravation had not ceased.

4. Mr Van der Hout then referred to the reports of Dr Volschenk, and the series of injections he had carried out. Mr Van der Hout noted the results of the second MRI dated 11 November 2021, and the subsequent issue of the dispute notices of 7 June 2022 and he referred to the list of payments which showed that, as of the date that weekly payments ceased, Ms Mackinney had received 104 weeks of weekly benefits.

5. Mr Van der Hout submitted that the issues were as I have outlined them at the outset of these reasons. He firstly submitted that the aggravation found by Dr Harrington on 11 November 2020 had ceased.

6. The opinion of Dr Ferch that there had been “no significant structural injury” had been shared by Dr Harrington, it was submitted, who said there was no “significant pathology.” Mr Van der Hout emphasised Dr Harrington’s advice that the focus of treatment be on physical therapy and not on multiple tests and investigations which would amplify any perceived disability.

7. Dr Harrington’s further report of 13 January 2022 was discussed in some detail, and his opinion that there had been a temporary aggravation which had by then ceased was referred to. Ms Mackinney’s presentation on that date was simply due to the intrinsic nature of her spine.

8. Mr Van der Hout then submitted that Dr Hopcroft’s first opinion that a diagnostic hydrocortisone and local injection into the sacroiliac joint was “mandatory” had proved to be an effective treatment, as in his report of 1 September 2022 he advised that Ms Mackinney had told him that she had no back pain following the procedure. It had worked “perfectly,” Mr Van der Hout quoted Dr Hopcroft as saying. Dr Hopcroft had advised that the subject accident had not only damaged the lumbar spine, but also wrenched the sacroiliac joint.

9. Mr Van der Hout submitted that the issue before the Commission was causation. He referred to Kirunda v State of NSW (No 4) [2018] NSWWCCPD 45 as authority for the uncontroversial proposition that a common-sense evaluation of the causal chain was required in determining causation. He also submitted that a careful analysis of the evidence, including the expert evidence, was required.

10. Such an analysis, Mr Van der Hout argued, showed a “critical inconsistency” between the opinion of Dr Hopcroft and the statement of the applicant. Whilst Dr Hopcroft recorded that when he spoke to Ms Mackinney he was told that she had no pain in her back and was “very happy,” Ms Mackinney had said in her statement that the following day her pain “returned as usual.”

11. Mr Van der Hout noted that no contemporaneous clinical notes had been lodged to identify the nature, duration or frequency of any treatment since May 2021. The untested assertions by Ms Mackinney could not be determinative, and the medical evidence alone demonstrated that the applicant was pain free in her back as at 30 August 2022.

12. This lacuna constituted a significant omission in the applicant’s case, as no further medical evidence had been lodged to support the applicant’s claim, which she herself had inadequately detailed as to her current capacity, it was submitted. The absence of such material would enable the Commission to find that it would not have assisted the applicant’s case, and a Jones v Dunkel inference could accordingly be drawn.

13. Mr Van der Hout submitted that in recommending the therapeutic cortisone injection, and in calling the applicant, Dr Hopcroft had overstepped the bounds of his duty as a medico-legal expert, and shown a partiality that was at odds with his obligation to be “truly independent.”

14. Further, it was submitted that Dr Hopcroft’s diagnosis incorporating the sacroiliac joint had not been pleaded, or mentioned, apart from Dr Hopcroft’s reports. No regard could therefore be had to it in any event.

15. It was submitted that the prior acceptance of this injury by the insurer was no basis for an inference that there was ongoing incapacity from it. Dr Hopcroft’s reports should be rejected, and Dr Harrington’s opinion that the aggravation had ceased should be preferred. This reflected the opinion of Dr Ferch that he could not find any “significant pathology,” and underlined that Dr Harrington’s view that the aggravation from the subject injury had ceased.

16. As to the question of incapacity, Mr Van der Hout noted Dr Hopcroft’s opinion that a return to pre-injury duties was compromised. That was not an opinion that Ms Mackinney had no work capacity at all, as had been claimed.

17. Again, it was submitted, there was a noticeable absence of treating medical evidence, without which the Commission was unable to determine the question of the applicant’s capacity. Moreover, the injury itself had been described as not being significant by both Dr Ferch and Dr Harrington. It was conceded that Dr Harrington had found Ms Mackinney to be unfit for her pre-injury duties, and suspected that because of her age and need to be retrained and rehabilitated, even part-time sedentary duties would be beyond her.

18. Moreover, Mr Van der Hout submitted that in any event Dr Harrington’s view was “merely an opinion in time” and the effect of Dr Hopcroft’s subsequent opinion that the applicant’s condition had recovered to the extent that she was symptom free limited Dr Harrington’s concession until that time, some eight months later.

19. Nguyen v Cosmopolitan Homes [2008] NSWCA 246 was cited as authority for the approach to be adopted in the fact finding process. The application of those principles would not enable the applicant to discharge her onus of proof, it was submitted.

20. Mr Van der Hout submitted that in the event a continuing entitlement to weekly payments was established, it should be limited to the date Dr Hopcroft declared Ms Mackinney to be pain free – a period of six weeks. Alternatively the period should be limited by the expiration of the s 37 entitlement period on 17 January 2023. The respondent noted that no application had been made to the insurer pursuant to s 38.

Applicant

1. Ms Mackinney’s submissions were prepared by Mr Mario Bechelli. I have by and large accepted his submissions, which are incorporated into my reasons. All submissions are in written form and available on the record.

2. Mr Bechelli submitted that Dr Harrington’s reports provided positive support for Ms Mackinney’s continued incapacity.

3. In considering Dr Hopcroft’s reports, Mr Bechelli simply referred to his diagnoses that Ms Mackinney was suffering from lumbar spondylosis with secondary non-identifiable radiculopathy, together with the severe wrenching injury to her sacroiliac joint.

Respondent in reply

1. Mr Van der Hout responded that Ms Mackinney had not engaged with the respondent’s submissions, but merely summarised the experts’ reports.

2. It was submitted that by her assertion that the only issue was causation, Ms Mackinney had used the argument that because she had an injury for which she had been receiving weekly compensation, it followed that if she succeeded in proving causation, her entitlement to weekly benefits would automatically continue – an example of the maxim “post hoc, ergo propter hoc,” which was a logical fallacy.

3. The conclusion by Dr Harrington that aggravation had ceased and that Ms Mackinney’s present limitations were the result of the intrinsic nature of the applicant’s spine was open to him. The respondent relied on Dr Harrington’s original remark that there was no reason why any work-related aggravation was not capable of recovery, and his opinion that Ms Mackinney had no real significant back condition.

4. Mr Van der Hout observed that no response had been made to his submission that Dr Hopcroft’s report that Ms Mackinney had no back pain was inconsistent with Ms Mackinney’s assertion in her statement to the contrary. He reiterated that the applicant had only proved an entitlement up to the date of Dr Hopcroft’s report – a period of six weeks.

DISCUSSION

1. The respondent issued two dispute notices. The s 78 Notice of 7 June 2022 denied liability for weekly payments on the basis of the reports of Dr Harrington.[10] It noted that Dr Harrington’s report of 19 November 2020 included advice that Ms Mackinney had “multi-level disc disease ‘in keeping with [your] age” (emphasis added). The Notice then referred to Dr Harrington’s report of 30 January 2022 which advised that Ms Mackinney had suffered an episode of acute back pain at work which was a “temporary aggravation” and that her current presentation was “due to the intrinsic nature of [your] spine” (emphasis added). The Notice indicated that Dr Harrington did not believe that employment was the main contributing factor to Ms Mackinney’s condition, and that any work-related injury or aggravation had then ceased.

   [10] ARD page 3.

2. The Notice acknowledged that Dr Harrington accepted that Ms Mackinney was not fit to do her pre-injury duties, but found that the ongoing incapacity was due to the “intrinsic nature of [your] lumbar spine rather than any work-related injury in July 2020” (emphasis added).

3. Ms Mackinney sought a review and a s 287A Notice was issued on 16 September 2022.[11] It firstly repeated the basis of the declinature explained in the s 78 Notice, and acknowledged that it had since received the two reports of Dr Hopcroft discussed above. The Notice did not mention Dr Hopcroft’s reported telephone conversation with Ms Mackinney, but stated:

   “Whilst we acknowledge the opinion provided from Dr Hopcroft, we maintain our original decision, relying upon the opinions of your own treatment providers and Dr Harrington, that whilst you did sustain an injury in the course of your employment that aggravation subsequently ceased, and your ongoing presentation was ‘due to the intrinsic nature of [your] spine’”. (emphasis added)

   [11] ARD page 57.

4. Reference to “your own treatment providers” was a reference also made in both Notices to the comment by Dr Ferch that there was “no significant structural injury to your back” and to the reports of Dr Volschenk which were summarised in both Notices as confirming that Ms Mackinney did not have any significant leg pain and that all her right sided lower back pain had abated.

5. I directed, unusually, that this matter be dealt with on the papers at the initial teleconference, as I was unable to follow the logic of the Notices, and nor was I convinced during the conciliation that there was any substance in the reasons given within those Notices.

6. Dr Harrington’s opinion of 19 November 2020 was readily acceptable as a considered diagnosis which reflected the facts of the case. He relied not only on the mechanism of the activity with which Ms Mackinney was engaged (trying to release a stubborn sofa bed) but also that she had not suffered any back symptoms in the past.

7. There is no suggestion in the evidence that Ms Mackinney has ever been free of symptoms since this accident, apart from the one occasion relied on so heavily by the respondent on the day of her diagnostic injection by Dr Hopcroft, to which I now turn.

8. The diagnostic therapeutic injection had been administered the day before Dr Hopcroft’s report of 1 September 2022, namely on 30 August 2022. In that report, Dr Hopcroft said firstly that he “had yet to hear whether she had had a good result.” His next paragraph stated that he “now” added that he followed up with a phone call to Ms Mackinney and was told that the injection “worked perfectly” and that she had “no pain in her back and is very happy with the outcome.”

9. Ms Mackinney agreed that she had told him something to that effect (“on that day [30 August 2022] after having the injection, I was pain free”) but it can be seen that there is a discrepancy as to when the phone call was made. It is clear that Dr Hopcroft interrupted his writing to make the phone call, and the date of his letter raises an inference that the phone call did occur on 1 September 2022, the day after the injection, and the day when Ms Mackinney said her pain returned. It may be that Ms Mackinney mistook the day of the phone call and that she was somewhat careless in the detail of her statement. In any event she stated that the “pain returned as usual.”

10. There is some merit in the respondent’s criticism about the preparation of the applicant’s case. The claim is for continuing weekly payments after they had been discontinued on 19 July 2022 and it is quite remarkable that Ms Mackinney neither addressed her current capacity, nor lodged any further medical evidence following Dr Hopcroft’s report of 1 September 2022.

11. However, these deficiencies need to be balanced with the whole of the evidence and particularly considered in the context of whether Ms Mackinney has satisfied her onus of proof.

12. Mr Van der Hout kindly set out the accepted legal test as to the onus of proof as described by the Court of Appeal in Nguyen v Cosmopolitan Homes[2008] NSWCA 246 at [55].

13. In Fisher v Nonconformist Pty Ltd [2023] NSWPICPD 12 President Judge Phillips summarised the test at [164]:

    “The first appellant relies upon Nguyen v Cosmopolitan Homes.. NSWCA 246 or NSWCA 2008 246;mask_path=au/cases/nsw/NSWPICPD where McDougall J remarked how proof of the balance of probabilities may be satisfied when the evidence induces an ‘actual persuasion’ to the mind of the decision maker that the probability of the existence of a fact is greater than the probability of its non-existence…”

14. In the context of the whole of the evidence I do not think that the outcome is dependent on a determination as to whether Ms Mackinney’s back pain returned on 1 September 2022, or the day after. What is apparent is that Dr Hopcroft’s enthusiasm for his diagnosis overrode his professional obligation as a medicolegal expert.

15. Mr Van der Hout at [26] of his submissions set out the AMA Guidelines and the NSW Medical Board’s policy regarding the role of medico-legal assessors (or, as they are now named, “Independent Medical Assessors”). It is indeed not appropriate for such an assessor to undertake any form of treatment, and a traditional therapeutic relationship is not supposed to be conducted.

16. Dr Hopcroft’s conclusion that the diagnostic therapeutic injection he arranged had “worked perfectly” and caused Ms Mackinney’s back pain to cease must be seen in the context of both the pathology revealed in the two MRI scans, and the obvious fact that injections of solutions of local anaesthetic and corticosteroid do have the effect of numbing pain for a short time thereafter. The radiologist who carried out the procedure recommended a follow-up two weeks post injection to see whether pain was persisting, and Dr Hopcroft’s observation later in his report of 1 September 2022 referred to the variable outcome that could be expected from the injection. It is relevant that Dr Hopcroft in his 1 September 2022 report found her to be compromised in her ability to perform her pre-injury duties and could only do light work.

17. Further, Ms Mackinney stated that although she was pain free after having the injection, the day after the pain returned, and she did not have any further injections. Indeed I note that the series of injections she had with Dr Volschenk prior to that organised by Dr Hopcroft only gave short term relief, and I accept that she has continued to be symptomatic when not experiencing that short term, medically induced relief.

18. Accordingly I am satisfied that Ms Mackinney continues to be symptomatic, and has been so since the subject injury.

19. Further, there has been no attack on her credit. Dr Harrington was unreservedly supportive of her complaints. In his report of 11 November 2020 he found the mechanism of injury to be consistent with the cause of Ms Mackinney’s acute back injury. He found that she was asymptomatic at the time and that employment was the main contributing factor to her injury. He found that she was not fit for her pre-injury duties, and that any residual capacity was probably not capable of constituting suitable duties.

20. In his second report of 13 January 2022, Dr Harrington’s support continued, save that he found that compensation was not payable because her condition was no longer work related, a finding which, as I indicated when discussing the dispute notices, I find to be logically unsupportable.

21. Before considering Dr Harrington’s report, it is convenient to discuss the insured’s reliance on “your own treatment providers.” The basis of that reliance was firstly that the neurosurgeon, Dr Ferch, had commented that there was “no significant structural injury to your back.” There is no requirement for an injury under the workers compensation scheme to be either structural, or significant, in order to qualify for payments of compensation – a situation that a person with experience in dealing with compensation claims would be expected to know.

22. Secondly, although it is correct that Dr Volschenk stated in his report of 16 August 2021 that following “interventional therapy,” Ms Mackinney did not have any significant leg pain and all her right sided lower back pain had abated, the insurer failed to reproduce Dr Volschenk’s next sentence, which read (to repeat):

    “Unfortunately, Margaret still has persistent left sided lower back pain which she finds difficult to manage…”

23. I note further that the s 287A Dispute Notice was dated 16 September 2022, and that the subsequent report from Dr Volschenk dated 21 March 2022 might also have been available to the insurer. As noted above, Dr Volschenk noted on that occasion that Ms Mackinney was complaining of persistence in her lower back pain, which was described as severe and, in common with complaints to other doctors, accompanied by radiation in her left leg up to her knee.

24. It may be that that report was not available to the insurer at the time of the issue of the s 287A Notice, but in view of the conduct exhibited in its selective quote of Dr Volschenk’s report of 16 August 2021, I regret that may not have been the case.

25. To return to Dr Harrington’s report of 13 January 2022, the dispute notices relied, as has been seen, on the expression “the intrinsic nature of your lumbar spine.”

26. This expression was used by Dr Harrington in explaining why he concluded that the aggravation caused by the subject injury to Ms Mackinney’s lumbar spine had ceased. As indicated, Dr Harrington said:

    “The diagnosis would be consistent with mechanical back pain. Although she may have suffered an episode of acute back pain, this would be considered a temporary aggravation injury at work in July 2020. The current presentation is due to the intrinsic nature of her spine.

    …

    It is possible that assembling the stubborn sofa bed caused an aggravation of underlying pathology however' any work related aggravation bas ceased.”

1. In his earlier report of 19 November 2020, Dr Harrington had said:

   “[The injury] could be considered an aggravation of pre-existing pathology which was previously asymptomatic i.e. a disease injury…. She remains symptomatic and the aggravation has not ceased…. I would estimate a timeframe of six months from the incident in July [for things to settle down].”

2. The acute back pain referred to by Dr Harrington in his report of 13 January 2022, he thus identified with the pre-existing pathology, being degenerative disease in the lumbar spine. By definition, the degenerative disease constituted the “intrinsic nature” of Ms Mackinney’s spine and Dr Harrington’s rationale for stating that the aggravation caused by the subject injury had ceased thus becomes a distinction without a difference. He did not suggest that Ms Mackinney has ever been asymptomatic since her injury and offered no other explanation as to why the condition of Ms Mackinney’s spine had continued.

3. I am thus satisfied that the aggravation to Ms Mackinney’s lumbar spine has not ceased.

4. Section 32A of the 1987 Act provides relevantly 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.”

5. The most up to date evidence is from Dr Hopcroft in his report of 1 September 2022, who advised that Ms Mackinney was unfit for her pre-injury duties as she was incapable of doing repetitive bending and lifting. This opinion by and large reflected that of Dr Harrington, who thought on 13 January 2022 that whilst Ms Mackinney might be fit for part-time sedentary duties of a very light nature she would be unable to do them without retraining and rehabilitation, which was unlikely to be successful.

6. I accept Dr Harrington’s opinion as being a realistic assessment of Ms Mackinney’s work capacity. She is now 65 years old and her age and work experience, when combined with her leaving school at 16 and working in unskilled positions all her life, satisfy me that she remains without any work capacity.

7. Ms Mackinney is thus entitled to weekly compensation until the expiry of the s 37 entitlement period. Mr Van der Hout said that the List of Payments was annexed to his submissions, but regrettably it was not. In any event my findings establish that she should receive her full entitlement up until that expiry date, which was pleaded as 3 January 2023. Mr Bechelli did not seek any orders pursuant to s 38.

8. I concur with Mr Van der Hout that the allegation by Dr Hopcroft that the left sacro-iliac joint was also injured is not before me, and I make no comment therefore.

Summary

1. The respondent will pay the sum of $360 per week from 19 July 2022 to the 3 January 2023 pursuant to s 37.