Malaquin v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Malaquin v Woolworths Group Limited [2021] NSWPIC 412
APPLICANT:	Donna Malaquin
RESPONDENT:	Woolworths Group Limited
MEMBER:	Nicholas Read
DATE OF DECISION:	14 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for future medical expenses in the form of bariatric surgery; worker suffered compensable injuries in 2015 and 2016 in the form of aggravations to her underlying back condition; worker claimed the effects of the aggravations were ongoing and brought about the need for surgery; respondent alleged aggravation injuries had ceased and need for any surgery was an underlying chronic back condition; Held – satisfied respondent discharged evidentiary onus of proof in relation to resolution of symptoms; not satisfied on the balance of probabilities worker continued to suffer from the effects of the aggravation injuries; award for the respondent on the claim for medical expenses.
DETERMINATIONS MADE:	1. The Applicant to Resolve a Dispute is amended as follows: (a) the dates of injury are amended to read “on or about 11 May 2015” and “on or about 2 August 2016”; (b) the allegation of injury and/or consequential condition to the bilateral hips is deleted; (c) the claims for lump sum compensation and weekly benefits compensation are deleted, and (d) the claim for medical expenses in the form of an automatic vehicle is deleted. 2. Award for the respondent on the claim for medical expenses, including the claim for bariatric surgery.

STATEMENT OF REASONS

BACKGROUND

Donna Malaquin, the applicant, was employed by Big W, the respondent as a sales assistant. Ms Malaquin claimed that she suffered two separate injuries to her back in the course of her employment, one on or around 11 May 2015 and one or around 2 August 2016. Ms Malaquin claimed the injuries caused pain in her lower back which had developed into a chronic condition.
The respondent accepted that Ms Malaquin had suffered the workplace injuries, but asserted that the injuries were temporary aggravations which had resolved – what was now causing Ms Malaquin pain was her underlying degenerative condition.
In these proceedings Ms Malaquin sought medical treatment expenses, including the costs of bariatric surgery. The respondent denied liability asserting that the claimed medical expenses were not reasonably necessary as a result of Mr Malaquin’s injuries. For the reasons set out below I have found that Ms Malaquin does not have an entitlement to the claimed medical treatment expenses.

ISSUE FOR DETERMINATION

The respondent notified the matters in dispute a number of notices issued pursuant to sections 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in particular notices issued on 12 April 2021 and 30 July 2021.
For the purpose of this application the issues in dispute were defined as follows:
(a) whether the accepted injuries to the lumbar spine (back) have resolved, and
(b) whether the claimed medical expenses, including the bariatric surgery, are reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/arbitration before me on 27 September 2021.
Mr Stuart Moffet of counsel appeared for the applicant instructed by Mr Steve Walker. Mr Simon McMahon of counsel appeared for the respondent instructed by Mr Sean Patterson.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and have been taken into account in making this determination:

(a) Application to Resolve a Dispute, and attachments (ARD);
(b) Reply filed by the respondent, and attachments excluding the opinions of Dr Robert Breit in his report dated 19 August 202 (Reply), and

(c) Applications to Admit Late Documents lodged by the applicant (ALD).

Witness evidence

In a statement dated 15 July 2021 Ms Malaquin said that she commenced working for Big W in 2010.
Ms Malaquin said on 11 May 2015 she injured her lower back at work when trying to avoid tripping over a child. Although Ms Malaquin did not fall, she strained her lower back in the process.
Ms Malaquin said that on 2 August 2016 she suffered further injury to her lower back. Ms Malaquin described the injury as follows:
“On that day, I was at work performing my usual duties at the self-service checkout. There was a lady carrying a microwave and she asked me to help her as she was about to drop the microwave. As I took the weight of the customer [sic.], My body was at a strange angle and twisted. I felt immediate pain in the lower back. The pain was immediately radiating down the left buttocks” (ARD page 2).
Ms Malaquin said in August 2016, around the time of her work injury, her weight was around 114kg. Ms Malaquin said her weight, as at 15 July 2021, was 130kg (ARD page 3; Reply page 50).
According to Ms Malaquin, she had put on weight since her injury in August 2016 as a result of being unable to walk significant distances and struggling to stand up or walk for long periods of time. Ms Malaquin said that even though she was 110kgs at the time of her injury she was able to stand and walk for long hours, but she was significantly restricted after the August 2016 injury (ARD page 3).
Ms Malaquin said she remained significantly affected by her lower back injuries (ARD page 4).

Medical evidence

Ms Malaquin has attended two different medical centres in Inverell, the Ross Street Surgery and the Inverell Medical Centre.
On 11 May 2015 Ms Malaquin attended the Ross Street Surgery and saw Dr Stephen McGilvray, general practitioner. Ms Malaquin reported lumbar spine pain resulting from the May 2015 injury (ARD page 317).
On 12 May 2015 Ms Malaquin again attended the Ross Street Surgery, this time seeing Dr Breda Thatcher, general practitioner. Dr Thatcher noted that Ms Malaquin usually saw a doctor at the Inverell Medical Centre. Dr Thatcher recorded that an x-ray of Ms Malaquin’s back showed mild osteoarthritis and noted that she had no symptoms of referred pain (ARD page 318).
On 18 May 2015 Dr Thatcher referred Ms Malaquin for physiotherapy. Dr Thatcher’s letter recorded that Ms Malaquin had sustained a prior injury in January 2015 which had resolved. There is no reference to a January 2015 injury in Malaquin’s statement or in any other documentary evidence. The history recorded in the referral letter included depression and obesity.
In late May 2015 Ms Malaquin commenced physiotherapy. A report from the physiotherapist to Dr Thatcher dated 29 May 2015 recorded that Ms Malaquin presented with facet joint pain over the right side at the L2-L5 levels of the lumbar spine (ARD page 99).
In a report dated 12 June 2015 the physiotherapist noted that Ms Malaquin’s low back pain was improving but a more active approach was required to treatment (ARD page 101).
On 15 June 2015 Ms Malaquin saw Dr Thatcher and reported a steady improvement of her condition. Dr Thatcher noted Ms Malaquin had increased her working hours and was currently working 25 hours per week with restrictions (ARD page 319).
On 25 June 2015 Ms Malaquin reported to Dr Thatcher that she was well, moving well, not using analgesics regularly and back to working regular duties and regular hours (ARD pages 319 – 320).
On or around 31 July 2016 Ms Malaquin suffered a further injury to her lumbar spine, described above.
In respect of this injury Ms Malaquin initially attended the Inverell Medical Centre.
Certificate of Capacity issued by Dr Alan El-Smadi, general practitioner, records that from 8 August 2016 Ms Malaquin was certified as having capacity to undertake 20 hours per week with restriction. Ms Malaquin’s capacity for work gradually increased until 7 November 2016 when Dr El-Smadi certified her fit for pre-injury duties (ARD pages 123- 136).
In or around mid-September 2016 Dr El-Smadi referred Ms Malaquin for an MRI scan of her lumbar spine.
The MRI report dated 23 September 2016 noted minor degenerative anterolisthesis of L3 on L4 associated with bilateral facet joint degenerative change however no compression fracture or acquired neural arch defect. In respect of the L3/4 level of the spine, the report noted that there was intradiscal degenerative desiccation signal abnormality, however no focal disc protrusion, nerve root compression or lateral canal stenosis (ARD page 112).
In a report addressed to the respondent’s insurer dated 7 November 2016, Dr El-Smadi stated that Ms Malaquin’s diagnosis was “acute on chronic low back pain, from a back sprain injury...”
In his report Dr El-Smadi said:
“...she [Ms Malaquin] has an underlying chronic low back pain that is usually well-controlled for the last three years, this recent exaggeration [sic.] Has been gradually improving with the management plan and has now resolved...
Her management plan included light duties, analgesia and physiotherapy, this has taken a few months to resolve but I believe she is back at baseline now.
Prognosis for the acute exaggeration is very good as I believe this has settled, but she will continue to be at risk of further exaggerations in the future which can be prevented with safe manual handling/lifting and regular back strengthening exercises as demonstrated by the physiotherapist.
I believe she is able to go back to preinjury duties.
A recent exaggeration of symptoms was due to the injury in August, and this has now resolved” (Reply page 54).
On 30 December 2016 Ms Malaquin saw Dr McGilvray at the Ross Street Surgery reporting back and hip problems. Dr McGilvray recorded the onset of problems was since Ms Malaquin fell at work.
On 6 January 2017 Dr McGilvray referred Ms Malaquin to Dr Timothy L Siu, neurosurgeon (ARD page 320).
In a report dated 30 January 2017, Dr Siu recorded that Ms Malaquin presented with a 12-month history of low back pain noting that the problem initially began one day at work when she tried to avoid stepping on a child lying on the floor behind her. Dr Siu recorded:
“In around August last year, she unfortunately reinjured her back whilst moving a microwave at work. Since then, there has been constant burning pain in the lower back with radiation to the left buttock, the thigh and sometimes all the way to the foot. This is associated with some intermittent paraesthesia in the left foot as well...” (ARD page 70).
Dr Siu recorded Ms Malaquin had otherwise been in good health in the past (ARD page 70).
Dr Siu opined that Ms Malaquin’s low back pain appeared to have a sciatic component and queried whether her pain was related to her L3/4 spondyloisthesis. Dr Siu recommended further investigations and the trial of spinal injections for diagnostic and therapeutic purposes (ARD page 70).
On 27 March 2017 Ms Malaquin saw Dr Siu. In a report of the same date Dr Siu noted that Ms Malaquin reported no symptom relief after undergoing a left L4 perineural injection. Dr Siu noted a lumbar x-ray demonstrated a grade 1 L3/4 spondyloisthesis. Dr Siu said Ms Malaquin’s response to the injection was disappointing and this casted doubt on whether her leg pain was radicular in nature. Dr Sui referred Ms Malaquin for a bone scan to exclude other pain generators (ARD page 72).
On 12 April 2017 Ms Malaquin had a regional bone scan which identified low-grade degenerative disease at the L3/L4 level of the lumbar spine, low-grade bilateral facet arthropathy at the L3/L4 level and low-grade arthritis of the bilateral S1 joints (ARD page 115).

In a report from a physiotherapist dated 22 May 2017 it was noted that Ms Malaquin had injured her back at work on 31 July 2016 and had returned to work on reduced hours. The physiotherapist reported the Ms Malaquin’s symptoms included “electric shocks” in her left gluteal and posterior thigh and a constant dull ache (ARD page 100).
From June to September 2017 Ms Malaquin continued to receive physiotherapy treatment (ARD pages 101-106).
On 25 September 2017 Dr Siu reviewed Ms Malaquin. Dr Siu recorded that Ms Malaquin reported marked burning pain in her lower back which radiated to her left thigh anteriorly and intermittent tingling in the dorsum of the left foot. Dr Siu said the most likely cause of Ms Malaquin’s pain was her L3/L4 spondylolisthesis referred Ms Malaquin for a disc block (ARD page 75).
On 12 October 2017 Ms Malaquin saw Dr Chris Walls, occupational physician. In a report of the same date Dr Walls noted that Ms Malaquin continued to report pain occurring every day lasting all day. Dr Walls said Ms Malaquin described her symptoms as burning discomfort in her lower back radiating to the left knee and mid portion of the right thigh (ARD pages 54-55).
Dr Walls said the pain generator for Ms Malaquin’s symptoms was unclear as the findings on the bone scan and MRI scan were not particularly dramatic.
Dr Walls said fusion surgery when the pain generator was uncertain was unlikely to improve Ms Malaquin’s situation (ARD page 56).
Dr Walls noted that Ms Malaquin’s back pain had not recovered with conservative measures over a long period and suggested referral to a pain management program (ARD page 57).
Dr Walls noted that Ms Malaquin’s degenerative disease in her lumbar spine was not untoward or severe in comparison to a person of her age without pain. Dr Walls opined that in the absence of any other pain generators, the degenerative disease was the likely cause of Ms Malaquin’s symptoms.
Dr Walls opined, based on the history provided to him by Ms Malaquin, that the two events at work were aggravations that had not ceased and prevented her from engaging in full hours and full activities (ARD page 58).
On 6 November 2017 Ms Malaquin saw Dr Siu. Dr Siu reported Ms Malaquin had responded positively to the disc block but suffered residual pain in her low back with some radiation to the posterior aspect of her legs. Dr Siu noted that Ms Malaquin wanted to defer surgery and pursue conservative treatment. Dr Siu discussed conservative strategies, including attendance at a multidisciplinary pain clinic and weight optimisation. Dr Siu referred Ms Malaquin to a pain clinic (ARD pages 76-77).
On 30 April 2018 Ms Malaquin saw Dr Siu complaining of recurring burning pain in her low back and bilateral leg pain with occasional paraesthesia. Dr Siu discussed surgery in the form of a fusion as a last resort (ARD page 79).
On 6 July 2018 Ms Malaquin saw Dr Siu. Dr Siu recorded that Ms Malaquin reported gradual settling of her pain but some burning pain across her lower back and some towards her left hip. Dr Siu noted Ms Malaquin had been undertaking regular part-time work (20 hours per week). Dr Siu said Ms Malaquin’s condition was slowly improving expectantly and it was reasonable for her to gradually increase her working hours (ARD page 80).
On 9 April 2019 Ms Malaquin saw Dr McGilvray. The clinical notes record Ms Malaquin reported she had injured her back again on Saturday and could not work this week (ARD page 334).
On 14 June 2019 Ms Malaquin saw Dr McGilvray reporting that she was doing well, increasing her working hours. Ms Malaquin’s work hours were increased to 28 hours per week (ARD page 335).
On 2 July 2019 Ms Malaquin saw Dr McGilvray reporting further improvement. Dr McGilvray recorded that Ms Malaquin would hopefully return to full-time duties over the next eight-week period and that she was currently working 28 hours per week (ARD page 335).
On 12 July 2019 Dr McGilvray noted Ms Malaquin was working 32 hours per week (ARD page 335).
On 30 August 2019 Dr McGilvray recorded Ms Malaquin was much better (“almost normal”) and was fit for a trial of pre-injury duties (ARD page 336).
On 4 September 2019 Dr McGilvray certified Ms Malaquin as having capacity for normal pre-injury work at 30 hours per week (ARD pages 264-265).
In or around September 2019 the respondent terminated Ms Malaquin’s employment (see ARD page 68).
On 20 September 2019 Dr McGilvray noted Ms Malaquin was no longer working and was suffering from depressive symptoms. Dr McGilvray referred Ms Malaquin to Dr Wei Wang, psychologist (ARD page 337).
Ms Malaquin commenced seeing Dr Wang on 24 September 2019.
On 10 October 2019 Dr McGilvray certified Ms Malaquin as having no capacity for work for the period 2 October 2019 to 2 November 2019. The Certificate of Capacity records the reason for Ms Malaquin’s incapacity as being depression problems and noted that she was not to look for work until her next review (ARD pages 267-268). Dr McGilvray continued to certify Ms Malaquin as having no capacity for employment for these reasons (ARD pages 268 - 314).
On 29 November 2019 Ms Malaquin saw Dr Aman Suman, psychiatrist. In a report dated 19 December 2019, Dr Suman reported Ms Malaquin had been stressed in the context of future job prospects and financial security. Dr Suman opined that Ms Malaquin satisfied the criteria of adjustment disorder with depressive symptoms and her back injury/pain was one of the main factors contributing towards her distress (ARD page 68).
On 10 December 2019 Ms Malaquin saw Dr Siu complaining of back and leg pain. Dr Siu noted it had been 17 months since he had last seen Ms Malaquin. Dr Siu reported that Ms Malaquin complained of constant low back pain with intermittent radiation to the buttocks and further down the lateral thighs and shins bilaterally as well as paraesthesia in the left foot (ARD page 81).
An MRI report dated 13 December 2019 identified minimal anterolisthesis of the L3 relative to L4 and retrolisthesis of L4 relative to L5 as well as intervertebral disc desiccation and circumferential disc bulge noted at those levels (ARD page 119).
In a report dated 14 February 2020 Dr Siu noted that Ms Malaquin continued to experience in severe pain in her lower back with radiation to her hips in the lateral aspect of her legs, particularly on the left side. Dr Siu recorded Ms Malaquin had tried to lose weight with diet and had managed to lose 5kg in the last two months. Dr Siu opined that Ms Malaquin’s worsening back pain, hip and leg pain was likely multifactorial in nature, contributed by her L3/4 spondylolisthesis, sacroiliac joint arthritis and hip arthritis, as indicated from a recent MRI/bone scan. Dr Siu said from the spine perspective, the mainstay of management for this would be nonoperative. Dr Sui said:
“I think again weight optimisation plays a key role here and it would be reasonable to consider bariatric surgery as a first line invasive treatment. I think she would also benefit from an orthopaedic and pain specialist review...” (ARD page 82).
On 14 February 2020 Dr Siu wrote to the respondent’s insurer seeking support for his view that weight optimisation and consideration of bariatric surgery would play a key role in improving Ms Malaquin’s condition (ARD page 85).
Dr Siu referred Ms Malaquin to a pain management specialist.
In a report dated 20 March 2020 Dr Suzanne Cartwright, pain medicine physician, took a history of Ms Malaquin being handed the whole weight of the microwave at an awkward angle and experiencing sudden severe low back pain.
Dr Cartwright opined that Ms Malaquin had multifactorial low back pain which was significantly exacerbated by her depression, her morbid obesity and her current lack of employment. Dr Cartwright said:
“Donna would benefit significantly from weight loss. In particular she will benefit from the hormonal changes that follow. Whilst weight loss associated with nonsurgical measures have achieved improvement in pain in patients with chronic pain, Donna has struggled to achieve any significant weight loss with these measures. In particular she has also struggled around some of the medication side-effects such as her previous pregabalin and current venlafaxine. I would strongly advocate the Donna be given access to bariatric surgery to assist with weight loss and thus improvement in her pain and function” (ARD page 93).

Medical opinion evidence

On 30 March 2020 Ms Malaquin saw Dr Robin Diebold, orthopaedic surgeon. In a medicolegal report of the same date Dr Diebold recorded a history of the traumatic injury on 2 August 2016. Dr Diebold opined that Ms Malaquin had initially suffered an aggravation of pre-existing degenerative changes in her lumbar spine. Dr Diebold said:
“However, this aggravation would have had a maximum duration of effect of six months. There is no rationale by which this mechanism of injury, suddenly taking the weight of a microwave, would lead to pathological changes that would lead to long-term back pain. Therefore, I do not find that the persisting symptoms are related to the work injury that occurred on 2 August 2016.” (Reply page 35).

Dr Diebold diagnosed Ms Malaquin as suffering from a chronic non-specific lower back pain (ARD page 36).
Dr Diebold said Ms Malaquin’s current symptoms were not due to the work-related injury and therefore any indication for bariatric surgery would not result from the injury. Dr Diebold said:
“However, if it was still accepted that the current back pain was due to the workplace injury in August 2016, it is a complex question as to whether any contemplated bariatric surgery is related to the injury. What can be said is that there is good evidence that significant weight loss will significantly improve chronic lower back pain. However, her obesity was pre-existing. She has apparently had some weight loss since the injury, but it does not appear that the amount of weight loss was great. Furthermore, there is a significant chance that bariatric surgery either will not succeed in gaining long-term weight loss, or that if this occurs, that a significant improvement in back pain will occur.” (Reply page 36).

In a report dated 3 June 2020 Dr Wang recorded that Ms Malaquin’s symptoms of depression were at a severe level. Dr Wang said Ms Malaquin had consistently reported that her pain had been constant which significantly affected her daily functionality and capacity (ARD page 90).
On 29 June 2020 Ms Malaquin saw Dr Endrey-Walder, general and trauma surgeon. In a medicolegal report Dr Endrey-Walder recorded that Ms Malaquin suffered from burning pain across her lower back which was aggravated by household duties (ARD page 44). Dr Endrey-Walder recorded that Ms Malaquin had diabetes and morbid obesity and was 114kg of the time of the subject accident. Dr Endrey-Walder recorded Ms Malaquin was 128kg.
Dr Endrey-Walder said:
“There is little doubt regarding the primacy of her work injuries as far as her now quite chronic back pain is concerned...
One has considerable sympathy for Dr Siu’s repeated opinion that any possible surgery on her back will have to wait until after the hopefully beneficial effect of a gastric sleeve operation for weight reduction” (ARD page 46 – 47).

In a report addressed to Ms Malaquin’s solicitors dated 14 April 2021, Dr Siu stated that Ms Malaquin had reportedly developed low back pain from a workplace injury in 2016 and since that time had suffered from non-remitting back pain of a mechanical flavour. Dr Siu diagnosed persistent spinal pain secondary to L3/4 spondyloisthesis.

Dr Siu said:
“Although her L3/4 spondyloisthesis is a pre-existing condition, her pain is triggered by the reported work-related incidents of repetitive awkward jarring, twisting movement and moving heavy objects. Is my opinion that therefore a low back condition is substantially contributed by the work injuries which caused an aggravation of a pre-existing condition (ARD page 88).”
Dr Siu said it would be reasonable to comment that Ms Malaquin’s weight gain had contributed to her back pain by way of limited physical capability and prolonged inactivity (ARD page 89). Dr Siu said there “could” be a relationship between Ms Malaquin’s inactivity due to persistent low back pain and her weight gain (ARD page 89).
Dr Siu said:
“Weight optimisation is part of the conservative management strategies for chronic low back pain. I do not have any expertise to comment on whether bariatric surgery is indicated for Ms Malaquin or whether this is reasonably necessary.” (ARD page 89).
In a report to Ms Malaquin’s solicitors dated 25 March 2021 Dr Cartwright opined that the immediate cause of Ms Malaquin’s acute musculoskeletal low back pain was the incident in August 2016. Dr Cartwright said:
“The transition from acute to chronic back pain has been promoted by high pain catastrophising, multiple treatment failures, difficulties with return to work (including a perception of an unsupportive workplace), morbid obesity, low self-efficacy in regards to pain, conflict over WorkCover, ultimate loss of employment and major depression...
Having reviewed Donna only once I cannot comment further on causative factors behind her other diagnoses.” (ARD page 94).
Dr Cartwright said obesity was a perpetuator of chronic low back pain and there was evidence of improvement of pain and function when bariatric surgery was undertaken, which include improvement of musculoskeletal pain conditions and improvement of nociceptive processing (ARD page 95).
Dr Cartwright said:
“Morbid obesity poses both a biomechanical problem for recovery from chronic low back pain by placing increased mechanical stress on all joints as well is hormonal and central nervous system changes that result from the existence of large amounts of adipose tissue within the body. Bariatric surgery (particularly gastric sleeve surgery or gastric bypass surgery) offers an evidence-based intervention to achieve sustained weight loss from BMIs such as Donna’s (>50g/m2) along with improvements in comorbid conditions (including pain and type II diabetes). A reduction in Donna’s pain and improvement in her nociceptive processing will allow her to increase her physical activity in a way that has not been possible for her to date. This is likely to further improve the pain function.
Without a reduction in her excess body weight Donna is unlikely to be able to further increase in physical activity or return to previous activities” (ARD page 95).
Dr Cartwright opined that bariatric surgery had the potential to improve Ms Malaquin’s capacity to return to the workforce, reduce her pain, improve the physical function, allow her to increase physical activity, improve management of type 2 diabetes and reduce reliance on passive strategies related to chronic pain management (ARD page 95).
In a report dated 16 June 2021, Dr David J Lewis, specialist general surgeon, stated that he agreed with Ms Malaquin’s other treating specialist that bariatric surgery offered an evidence-based intervention and was the only option to improve her chronic pain (ARD page 96).
In a report dated 2 July 2021 Dr McGilvray noted that Ms Malaquin’s obesity had had worsened since her mobility had decreased over the years since her injuries. Dr McGilvray said Ms Malaquin was now unfit for major back surgery due to her weight and would only be fit for surgery if she lost weight. Dr McGilvray noted Ms Malaquin had been advised to seek bariatric surgery to correct her weight gain/obesity and that the injury was in some part causative of her weight gain over the last four years due to lack of mobility (ARD page 97).
In a report dated 2 September 2021 Dr Endrey-Walder reviewed Dr Diebold’s reports of 3 March 2020 and 26 April 2020. Dr Endrey-Walder maintained his opinion that Ms Malaquin continued to suffer from the effects of her lower back injury. In respect of the claimed bariatric surgery, Dr Endrey-Walder said:
“I do believe that your client’s excessive weight gain after the back injury had led to weight gain which continues to impact on her damage back and hip joints, hence deserving of serious consideration for bariatric surgery” (ALD page 2 - 3).

REASONS

Have the accepted injuries to Ms Malaquin’s back resolved?

There is no dispute that Ms Malaquin suffered injuries to her back at work on or around the pleaded dates of injury. The injuries were in the nature of aggravations to Ms Malaquin’s underline degenerative condition in her lumbar spine.
The issue for determination is whether Ms Malaquin has continued to suffer from the effects of the injuries or whether the injuries have resolved. This is a question of fact to be determined by reference to the evidence.
Ms Malaquin has the ultimate onus of proof (Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1]).
The standard of proof is the balance of probabilities. The test in relation to standard of proof has been discussed by the Court of Appeal in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) where McDougall J (McColl and Bell JJA agreeing) said at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:
“A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
The terms “disease” and “personal injury” in section 4 of the Workers Compensation Act 1987 (the 1987 Act) are not mutually exclusive and the distinction is not of critical importance in this case (see NSW Police Force v Gurnhill [2014] NSWWCC 12 at [72]-[73] citing Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 and Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 at [39]-[40])).

The parties agreed that the respondent bore an evidentiary onus in respect of the issue of whether the injuries to Ms Malaquin’s lumbar spine had ceased.
In Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229 (22 November 2007) DP Roche considered the circumstances in which the evidentiary onus shifts in proceedings in the former Workers Compensation Commission. The Deputy President referred to Brown v Lewis [2006] NSWCA 87 and said at [54]:

“In Lewis, Mason P stated at [83], ‘the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake [1960] HCA 58; (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.’ In the Commission, the ultimate persuasive onus remains with the applicant worker (Mr Ahmed). However, where the worker has made out a prima facie case that his or her condition has resulted from a compensable work injury and that employment was a substantial contributing factor to that injury, the onus of adducing evidence that the condition has resulted from some pre-existing condition rests with the employer (see Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) CLR 114 164 at 168… Their Honours added that in the absence of such evidence a plaintiff would be entitled to succeed ‘if his evidence be accepted’ (at 168).”

In Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland) Keating J discussed the relevance of contemporaneous evidence such as clinical notes and medical reports. In Ireland His Honour Keating J warned against the dangers of decision-makers relying on findings of credit rather than evidence and emphasised that all of the evidence must be weighed up in determining questions of fact (at [91]).
Ms Malaqun submitted that her statement and the medical evidence supported that the workplace injuries had not resolved but had developed into a chronic condition which brought about the need for bariatric surgery as first line intervention treatment.
The respondent submitted that the contemporaneous medical evidence and opinion of Dr Diebold supported that the effects of the injuries to Ms Malaquin’s ceased. In particular, the respondent relied upon the report from Dr El-Smadi, the clinical notes which showed significant improvement in Ms Malaquin’s condition leading up to September 2019 and Dr Diebold’s opinion concerning the likely temporary nature of the 2016 injury. The respondent submitted that the restrictions now suffered by Ms Malaquin were the result of a long-standing chronic back condition.
There is substantial force in the respondent’s submissions. In respect of the 2015 injury Ms Malaquin reported to Dr Thatcher that her condition had improved. By 25 June 2015 Ms Malaquin had returned to pre-injury duties. The evidence supports that the injury sustained in 2015 had resolved to a point where Ms Malaquin was able to resume work. Having regard to the documentary evidence, it is more likely than not that as at 25 June 2015 Ms Malaquin’s initial injury in 2015 had resolved.
During the arbitration, Ms Malaquin placed significant emphasis on the 2016 injury as being a significant injury which progressed into a chronic pain condition. Ms Malaquin relied upon the history of the mechanism of injury given to Dr Cartwright and recorded in her report of 20 March 2020. However, the significance placed on the 2016 injury as being the cause of ongoing symptoms in Ms Malaquin’s back is not consistent with the contemporaneous evidence of Dr El-Smadi.
Ms Malaquin has not given any evidence concerning previous back problems referred to in Dr El-Smadi’s report of 7 November 2016. Ms Malaquin’s statement evidence contains no denial of prior back problems or non-acceptance of the information recorded in Dr El-Smadi’s report. Ms Malaquin’s statement also does not address the notations in the clinical records regarding a previous back injury in 2015 which resolved or a subsequent aggravation injury on 6 April 2019 (Reply page 55; ARD page 334). There is no evidence that contradicts
Dr El-Smadi’s report.
I reject Ms Malaquin’s submission that Dr El-Smadi’s report is unreliable because it cannot be placed in the context of clinical records or was addressed to the respondent’s insurer. The clinical records from the Inverell Medical Centre have not been placed into evidence. I find Dr El-Smadi’s opinions to be clear without the need for any letter of instruction or additional context. The fact that the report was addressed to the respondent’s insurer does not cause me to doubt the reliability of the evidence. It is difficult to accept that a treating general practitioner would provide incorrect information about a patient’s medical condition to an insurer that would be deliberately prejudicial to a valid claim for compensation.
In the circumstances where there is no evidence that contradicts the information in report of Dr El-Smadi, I accept the evidence. In his report, Dr El-Smadi recorded that Ms Malaquin had a history of underlying chronic back pain for the last three years, i.e. since approximately November 2014 and prior to the 2015 and 2016 injury. Consistent with Dr El-Smadi’s report, I find that from at least November 2014 Ms Malaquin had developed a chronic back condition, which was susceptible to aggravation injuries.
Critically, Dr El-Smadi described the 2016 injury an acute injury on a chronic back pain condition. Dr El-Smadi’s reported on 7 November 2016 that Ms Malaquin’s aggravation to her back had resolved and she was “back to baseline” (Reply page 54). Dr El-Smadi assessed Ms Malaquin as being fit for pre-injury duties from 7 November 2016 (ARD page 135).
A further factor that supports the resolution of the 2015 and 2016 injuries is the medical opinion concerning the radiological evidence. As noted by various doctor’s the radiological evidence did not support readily identifiable pathological change as the cause of ongoing symptoms.
Dr Siu said Ms Malaquin’s disappointing response to a perineural injection casted doubt on whether her pain was radicular in nature. In my mind, this calls into question Ms Malaquin’s allegation of radiating pain experienced immediately after the 2016 injury. Ms Malaquin’s allegation o radiating pain is not supported by any contemporaneous evidence.
Dr Walls reviewed the scans and noted that the pain generator was uncertain. Dr Endrey-Walder commended that the initial radiological studies highlighted little in the way of significant abnormality except for mild spondylolisthesis of L3 and L4 of a degenerative nature (ARD page 46).
The absence of any readily identifiable pathology caused by the supposedly traumatic injuries in 2015 and 2016 is a factor that casts doubt on Ms Malaquin’s claim that the injuries brought about chronic pain. It seems to me that it is more likely than not that the cause of Ms Malaquin’s pain was her longstanding pre-existing degenerative problems, and not the instances of aggravation in 2015 and 2016 themselves.
I also note that Dr McGilvray was somewhat sceptical of the nature of Ms Malaquin’s claim and what was responsible for her back pain (see entry in clinical records on 7 June 2017, ARD page 323).
Another matter that supports resolution of Ms Malaquin’s injuries is that she was certified fit for pre-injury duties in September 2019. The Certificates of Capacity issued from 20 September 2019 identify Ms Malaquin’s psychological condition as being the cause of her incapacity, not specifically ongoing back pain due to the workplace injuries.
The issue of whether or not Ms Malaquin’s injuries have resolved is also to be determined by reference the medical opinion evidence.
The weight afforded to medical opinion evidence is to be determined by having regard to the correspondence of the opinion provided with the facts proved by admissible evidence. The assumptions underpinning an expert opinion must provide a “fair climate” to ground the opinion. (OneSteel Reinforcing Pty Ltd vSutton [2012] NSWCA 282; Hancock v East Coast Timber Products Pty Ltd (at [77]).
Whilst Dr Diebold may not have had a complete history of Ms Malaquin’s chronic back pain condition, his evidence is otherwise consistent with the evidence of Dr El-Smadi. Dr Diebold diagnosed Ms Malaquin’s condition as chronic non-specific lower back pain. Dr Diebold’s opinion is also consistent with Dr El-Smadi’s evidence of the nature of the injury being an acute aggravation of a chronic back pain condition.
That Dr Diebold may not have been provided with Dr El-Smadi’s report does not cause me to place less weight on his opinion. Had Dr Diebold been provided with the report it is likely to have strengthened his view concerning resolution of the of 2016 injury. Dr Diebold said the aggravation injury would have had a maximum duration of six months.

I do not accept Ms Malaquin’s submission that Dr Diebold’s opinion is weakened because is it inconsistent with the fact that she was receiving treatment from Dr Siu after the six-month timeframe. There is a break of approximately eight weeks between Ms Malaquin being certified fit for work and first attending upon Dr McGilvray in December 2016/January 2017 reporting back and hip problems. Ms Malaquin has not provided an explanation for the change from the Inverell Medical Centre to the Ross Street Surgery. Ms Malaquin has not addressed Dr El-Smadi’s evidence regarding symptom resolution.
I find that Dr Diebold’s report was given in a fair climate. I accept opinions concerning the likely duration of the 2016 aggravation injury and its resolution.
In my view, the medical opinion evidence relied upon by Ms Malaquin is of limited probative value. This is because the doctors have not been provided with an accurate history, in particular the absence of information concerning a past history of chronic back pain.
Dr Siu and Dr Walls did not have a history of Ms Malaquin’s prior back condition and other aggravation injuries that may have triggered pain.

Similarly, Dr Cartwright was not provided with a history of any pre-existing back pain. Dr Cartwright’s opinion is based an acceptance that the 2016 injury was the cause of the onset of back pain. Dr Cartwright’s opinion that the August 2016 brought about a transition from acute to chronic back pain is entirely at odds with the uncontested evidence of
Dr El-Smadi.
Dr Endrey-Walder did not take a history of prior back pain. Dr Endrey-Walder was not in a position to provide an accurate opinion on the primary cause of Ms Malaquin’s chronic back pain.
I am satisfied that the respondent had discharged its evidentiary onus on the issue of whether Ms Malaquin’s injuries have resolved.
The ultimate onus of proof lies with Ms Malaquin. Having regard to all of the evidence, I am not satisfied on the balance of probabilities, that Ms Malaquin continues to suffer from the effects of the injuries of 2015 and 2016. It more probable that Ms Malaquin’s workplace injuries resolved in or around early November 2016 and her ongoing symptoms are the result of a chronic back pain condition.
I find that Ms Malaquin’s current symptoms experienced are the result of pre-existing chronic non-specific back pain, and not as a result of the 2015 and 2016 workplace injuries.

Medical expenses

Section 60(1) of the 1987 Act provides that if, as a result of an injury received by a worker, it is reasonably necessary that medical treatment be provided the worker’s employer is liable to pay the cost of that treatment.
In Murphy v Allity Management Services Pty Ltd [2015] NSWCCPD 49 (Murphy), Roche DP considered the question of causation under section 60 of the 1987 Act. In that matter, the Commission was tasked with determining whether a need for surgery resulted from a workplace injury or a subsequent slip and fall in a supermarket where the worker had injured the same body part. Roche DP found that the arbitrator had fell into error by failing to properly analyse the evidence regarding the slip and fall.
At [57] to [58] of Murphy Roche DP stated:
“[57] Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

As I have found that Ms Malaquin’s aggravation injuries resolved in or around November 2016, if follows that the injuries do not materially contribute to the need for any bariatric surgery. The material need for any surgery of that nature is Ms Malaquin’s pre-existing chronic back pain condition.
I do not accept Ms Malaquin’s evidence that she was “significantly restricted” after the August 2016 injury which caused her put on weight. Ms Malaquin’s evidence is not consistent with Dr El-Smadi’s evidence and her increased functioning and gradual return to work. Ms Malaquin’s evidence is also not consistent with Dr Siu’s report on 14 Februry 2020 that Ms Malaquin had managed to lose 5kg in two months. Ms Malaquin’s claim concerning weight gain must also be viewed in the content of her pre-existing obesity. I am not satisfied on the balance of probabilities that Ms Malaquin’s workplace injuries caused her to put on weight and therefore contributed to a need for bariatric surgery.
It is conceivable that Ms Malaquin’s level of activity reduced after her employment with the respondent ceased, however any increase in weight after that circumstance was not due to the workplace injuries.
Dr Endrey-Walder does not provide any opinion on whether bariatric surgery is reasonably necessary as a result of the injury. The highest his opinion can be put is that bariatric surgery is required as a precursor to possible surgery on Ms Malaquin’s lumbar spine. Dr Endrey-Walder does not specifically address the issue of whether bariatric surgery is reasonably necessary as a result of the workplace injuries. Dr Endrey-Walder’s opinion is not consistent with Dr Siu’s statement that the mainstay management of Ms Malaquin’s condition would be non-operative and surgery was a “last resort.”
Dr Diebold’s opinion is predicated on accepting that Ms Malaquin’s current back pain was due to the workplace injury of August 2016. I have found that Ms Malaquin’s back pain is no longer due to the workplace injuries. Therefore, it is not necessary for me to consider his opinion in respect of whether the bariatric surgery is reasonably necessary as a result of the injuries.
Dr Cartwright’s opinion is based on acceptance of the injuries being a material cause of Ms Malaquin’s back pain. I accept that as a matter of general medical opinion that bariatric surgery is intervention likely to achieve sustained weight loss and alleviate back pain cases where other weight loss strategies have failed. However, for the above reasons I am not satisfied on the balance of probabilities that Ms Malaquin’s back pain is a co-morbid condition that resulted from her workplace injuries.
Dr Siu does not provide a conclusive view on the relationship between Ms Malaquin’s injuries, her weight gain, and the need for bariatric surgery (ARD page 89). Dr Siu refrains from providing any opinion on the possible benefits of bariatric surgery in Ms Malaquin’s case.
Dr Lewis’ opinion is of limited probative value. Dr Lewis said he would be happy to facilitate the surgery. Whilst the surgery may alleviate Ms Malaquin’s chronic pain, I am not satisfied that the cause of Ms Malaquin’s ongoing pain is the workplace injuries.
As I have found that Ms Malaquin’s workplace injuries had resolved by November 2016, I am not satisfied that the injuries materially contributed to a need for any medical expenses for psychological treatment. It is equally or more probable that the need for such treatment arose from the loss of Ms Malaquin’s employment and her chronic non-compensable back pain condition.

There will be an award for the respondent on the claim for medical expenses.

[2021] NSWPIC 412

14 October 2021