Manenti v Sika Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Manenti v Sika Australia Pty Ltd [2022] NSWPIC 267
APPLICANT:	Peter John Manenti
RESPONDENT:	Sika Australia Pty Ltd
MEMBER:	Jacqueline Snell
DATE OF DECISION:	3 June 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims weekly compensation for a closed period and the costs associated with proposed surgical treatment in the nature of C4-5 Anterior Cervical Decompression and Fusion, resulting from injury sustained to the cervical spine on 9 September 2020 in the course of his employment with the respondent; the respondent disputes the applicant suffers an incapacity for work resulting from his neck injury and the respondent disputes the proposed surgical treatment is reasonably necessary treatment for his neck injury; Held- the applicant had no current work capacity during the closed period claimed resulting from the injury he sustained to his neck and the applicant has an entitlement to weekly compensation payable under section 37(1) of the Workers Compensation Act 1987 (the 1987 Act) during that period; the proposed surgical treatment is reasonably necessary treatment for the injury the applicant sustained to his neck and the costs associated with this surgical treatment are payable under section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant had no current work capacity between 22 May 2021 and 7 March 2022 resulting from injury the applicant sustained to his cervical spine on 9 September 2020 in the course of his employment with the respondent. The applicant has an entitlement to weekly compensation payable under section 37(1) of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $1,3541.14 each week (subject to indexation) during the period 22 May 2021 and 7 March 2022. 2. The applicant requires medical and related treatment as a result of the injury the applicant sustained to his cervical spine on 9 September 2020 in the course of his employment with the respondent. The proposed surgical treatment in the nature of C4-5 anterior decompression and fusion is reasonably necessary treatment resulting from the injury the applicant sustained to his cervical spine. The respondent is to pay the costs associated with the proposed surgical treatment in the nature of C4-5 anterior decompression and fusion resulting from injury the applicant sustained to his cervical spine, pursuant to section 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

At the time he sustained injury the subject of these proceedings, the applicant, Peter John Manenti (Mr Manenti) was employed by the respondent, Sika Australia Pty Ltd (Sika).
Sika accept Mr Manenti sustained injury to his cervical spine in the course of his employment with Sika. Sika accept Mr Manenti sustained secondary psychological injury as a result of this injury. The date of injury is noted to be 9 September 2020.
In his proceedings before the Personal Injury Commission (the Commission) Mr Manenti claims the following:
(a) weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) between 22 May 2021 and 7 March 2022, and
(b) medical and related treatment payable under s 60 of the 1987 Act, including costs associated with proposed surgical treatment in the nature of a C4/5 anterior cervical decompression and fusion.
Mr Manenti’s claim for weekly compensation resulting from injury sustained to his cervical spine and psychological injury (secondary) is disputed. Mr Manenti’s claim for the costs associated with proposed surgical treatment in the nature of a C4/5 anterior cervical decompression and fusion is also disputed. Mr Manenti has been issued with dispute notices dated 28 April 2021[1] and 13 December 2021[2] in which he has been advised of the decisions to decline his claims for compensation.
[1] Application to Resolve a Dispute (ARD) at page 5.
[2] ARD at page 11.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether Mr Manenti suffers an incapacity for work resulting from the injury he sustained to his neck and the secondary psychological injury he sustained in the course of his employment with Sika, and
(b) whether the proposed surgical treatment in the nature of a C4/5 anterior cervical decompression and fusion is reasonably necessary treatment for the injury he sustained to his neck in the course of his employment with Sika.
The parties agree Mr Manenti’s pre-injury average weekly earnings (PIAWE) are $1,688.92.

PROCEDURE BEFORE THE COMMISSION

Mr Manenti’s claim for compensation came before me for teleconference on 25 February 2022. Mr Lleonart appeared for Mr Manenti and Mr Elder and Ms Magan appeared for Sika. Mr Manenti was present. Ms Vernados, a representative of EML was also present.
With Mr Manenti’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 21 April 2022. Mr Morgan of counsel appeared for
Mr Manenti instructed by Ms Ierica. Mr Parker of counsel appeared for Sika. Mr Manenti was present.
Following my discussions with counsel I was satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I was satisfied the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
By consent, the following amendments were made to the ARD initially lodged with the Commission:
(a) Mr Manenti’s claim for weekly compensation resulting from primary psychological injury was discontinued, and
(b) Mr Manenti’s claim for weekly compensation payable under s 37 of the 1987 Act resulting from the injury he sustained to his neck and secondary psychological injury in the course of his employment with Sika is for a closed period between 22 May 2021 and 7 March 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 14 April 2022 lodged on behalf of
Mr Manenti and attached documents (AAALD - 1);
(d)    Mr Manenti’s supplementary statement dated 20 April 2022 and report of Dr Hsu dated 14 April 2022, which were admitted into evidence at the arbitration hearing (AAALD – 2), and
(e)    report of Dr Smith dated 19 April 2022 prepared in his capacity as independent medical examiner, which was admitted into evidence at the arbitration hearing (RAALD).

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statement of Mr Manenti

Mr Manenti relied on a statement dated 25 January 2022[3] and a statement dated 20 April 2022[4].
[3] ARD at page 1.
[4] A AALD – 2.
In his initial statement Mr Manenti explained that on 9 September 2020 after undertaking the work duties required of him that day, he noticed “very strong pain affecting my neck and also going down over my right shoulder down my arm”. The following day Mr Manenti consulted with Dr Montesclaro, in the absence of his usual general practitioner, Dr Elpedes-Bolina, and was certified totally incapacitated for work “for a couple of days”. With his symptoms persisting he returned to consult with Dr Elpedes-Bolina, who referred him for specialist review with Dr Suttor. Mr Manenti was again certified totally incapacitated for work until 13 November 2020, when he returned to work on suitable duties. Mr Manenti said he was not satisfied with Dr Suttor’s opinion as he “simply recommended cortisone”, which Mr Manenti explained only provided short term relief. Mr Manenti was subsequently referred for specialist review with Dr Hsu, whose fees he paid himself. Dr Hsu recommended surgical intervention. Mr Manenti resigned from his employment with Sika on 13 January 2021 “as a result of a psychological injury and concerns about my ongoing safety”.
In his subsequent statement, Mr Manenti elaborated on his resignation:
“I felt unsafe returning to the role under my current manager, and I was concerned about further exacerbating my injury given the nature of the role and disregard for safety issues. At this time I was receiving psychological treatment due to a secondary psychological claim.”
Mr Manenti also explained that in April 2021 he underwent surgical treatment for a work-related right hernia injury and it was his understanding that treatment for his neck was “put on hold” while he underwent this surgical treatment and the ensuing recovery period. However, on enquiry regarding recommencing treatment for his neck with a view to increasing his capacity to return to work, Mr Manenti was notified of the decision to decline ongoing liability for weekly compensation and medical treatment for his neck injury and secondary psychological injury. Mr Manenti said:
“Despite still experiencing psychological distress and pain and stiffness in my neck from my injuries, due to my position of financial hardship, I had very little option but to commence job seeking. This proved limiting as I had been in the concrete technology industry for over 10 years and was uncertain what alternative employment I could gain that would be able to financially match the salary I had been receiving at the time of my injury. After applying for multiple roles, I was able to gain employment at an entry level role (warehouse storeman), that is able to accommodate my restrictions due to the use of technologically assisted equipment to complete tasks. This role is considered a demotion and is approximately $40,000 less annually than what I was earning at the time of my injury.”

Treating medical evidence
Rouse Hill Medical Clinic

Mr Manenti is under the general medical care of the doctors practising out of Rouse Hill Medical Clinic. His usual general practitioner is Dr Elpedes-Bolina. The clinic’s clinical records are in evidence before the Commission[5]. Although the clinical records are difficult to follow it is evident that when Mr Manenti presented on 20 April 2021 Dr Elpedes-Bolina discussed the results of his MRI cervical spine with him. While “intermittent pain” was noted by Dr Elpedes-Bolina, so was “overall improved”. On this occasion Dr Elpedes-Bolina certified Mr Manenti as fit for his pre-injury duties.
[5] ARD commencing at page 44.
However, on review on 29 June 2021 Dr Elpedes-Bolina noted Mr Manenti had consulted with Dr Hsu and plans were in place for a CT guided facet joint injection C4/5 right side.
Dr Elpedes-Bolina at that time wrote “patient still feels not back to normal”.
On review on 26 July 2021, Dr Elpedes-Bolina noted Mr Manenti still suffered intermittent pain and recorded:
“Review, no significant change, ongoing intermittent pain, still has neck movement limitation, can work as tolerated, previously put on pre injury duties but has restrictions still, see restriction below stating limit repetitive movements as tolerated, seen by neurosurgeon, booked for CT guided facet joint injection C4/5, right side on 30/07/2021, still waiting for exercise physiology approval, review in 4 weeks.”
On this occasion Dr Elpedes-Bolina certified Mr Manenti as having capacity for some type of work for “normal hours” for “normal days”.
On review on 23 August 2021 Dr Elpedes-Bolina recorded “No sign change” and certified
Mr Manenti as having some work capacity for “normal hours” for “normal days”.
In a letter dated 8 September 2021 addressed to Mr Manenti’s lawyers, in response to specific questioning, Dr Elpedes-Bolina relevantly said:
“Your opinion in relation to his reasonably necessary medical treatment needs.
I believe treatment is needed as appropriate.
Prognosis.
Uncertain.
Your opinion in relation to his fitness for any employment.
I believe he would be suitable for other employment other than his previous job as concrete lab supervisor.”
In a subsequent medical certificate dated 27 January 2022 Dr Elpedes-Bolina wrote:
“This is to certify that Mr Peter Manenti has ongoing stress as a result of work related neck injury, and need to increase dose of medication to help cope, currently unfit for work.”

Hills Osteopathic and Health Care Centre

Mr Manenti came under the osteopathic care of Andrew Pra and in his letter dated 2 October 2020[6], Mr Pra confirmed Mr Manenti had presented for treatment of his neck and right shoulder pain on 9 September 2020.

Harbour Spine Surgeons
[6] ARD at page 28.

Mr Manenti was initially referred for orthopaedic review with Dr Suttor. Dr Suttor provided reports dated 14 October 2020[7] and 27 October 2020[8]. Dr Suttor initially reviewed
Mr Manenti on 14 October 2020 with Mr Manenti presenting with a five week history of right sided neck pain symptoms and a history of “an overuse injury at work on 9 September 2020”. Mr Manenti had been treated with physiotherapy and analgesic medication. Following clinical examination and review of the CT scan of his cervical spine, Dr Suttor suggested trialling a CT guided injection of the right C4-C5 facet joint. In response to specific questioning,
Dr Suttor provided opinion Mr Manenti’s neck injury was in the nature of “an aggravation of pre-existing facet joint arthropathy”, which he considered was current but should resolve “over the next 2-3 months”. However, Dr Suttor cautioned recovery “may depend on his response to treatment”.
[7] ARD at page 29.
[8] ARD at page 31.

New South Wales Spine Specialists

Mr Manenti was subsequently referred for orthopaedic review by Dr Hsu. Dr Hsu provided a number of reports[9]. Dr Hsu initially reported on 25 November 2020 with a history of
Mr Manenti working in the concreting industry and experiencing neck and shoulder pain after lifting a heavy object. Following review of the MRI scan which reportedly demonstrated moderate cervical disc bulging, Dr Hsu made arrangement for Mr Manenti to undergo a bone scan of his cervical spine. On review on 9 December 2020, Dr Hsu referred Mr Manenti for pain management review regarding further non-surgical treatment options, including injection therapy. On review on 11 January 2021, Dr Hsu reported Mr Manenti’s symptoms were improving and he did not consider there was need to proceed with any further investigations or intervention at that point in time. He wrote:
“His overall pathology is mild and it is likely that he will return to his usual activities over the next few weeks.”
[9] ARD commencing at page 36.
However, on review on 24 June 2021 when Mr Manenti returned with ongoing neck pain,
Dr Hsu reported further medical management was planned in the nature of a further injection at the C4-5 level on the right side facet joint. He cautioned that without significant improvement “we may consider other treatment options”. On review on 3 September 2020 following his C4-5 facet joint injection, Dr Hsu reported the injection provided Mr Manenti with significant relief of symptoms during the anaesthetic phase and for three months afterwards, and wrote:
“This does give us very good diagnostic information and his symptoms are still quite significant. I have arranged for him to have a face-to-face consultation with me to discuss further treatment options and this could involve surgical intervention.”
In his report dated 19 November 2021 addressed to Mr Manenti’s solicitors, Dr Hsu provided diagnosis with reference to Mr Manenti’s most recent bone scan still demonstrating C4-5 facet pathology and most recent MRI scan demonstrating C4-5 spondylolisthesis and disc bulging. He said he was not aware of Mr Manenti having suffered any pre-existing condition and felt the demonstrated pathology resulted from the injury he had sustained to his neck during the course of his employment with Sika. Dr Hsu noted Mr Manenti had undergone two successful injections at C4-5, one being at the facet joint and one in the foramen. He described both injections having provided Mr Manenti with significant relief during the anaesthetic phase and confirmed there was good diagnostic information regarding the origin of Mr Manenti’s symptoms. Dr Hsu described Mr Manenti as having exhausted his non-surgical treatment and provided opinion “surgical intervention is now necessary”. Relevant to prognosis, Dr Hsu wrote:
“With timely intervention, his prognosis is good. The aim of the surgery is to return to pre-injury duties 6 to 12 months after surgery.”
Dr Hsu provided further opinion that without proper intervention “his ability to work is poor. He will require a formal functional assessment to accurately determine work capacity”.
In his further report dated 14 April 2022[10], which is also addressed to Mr Manenti’s solicitors and responds to specific questioning, Dr Hsu wrote:
“Mr Manenti had two successful injections at C4-5, one at the facet joint and one in the foramen. Both injections gave him significant relief during the anaesthetic phase and we do have good diagnostic information regarding the origin of his pain. He has now exhausted non operative treatment including pain management and spinal injections, surgical intervention is now reasonably necessary. His surgery will be in the form of C4-5 anterior cervical decompression and fusion.
I have discussed the surgical goals, risks and benefits of surgery and the peri-operative risks. These risks include anaesthetic risks, death, infection, neurological injury, non union regarding further surgery and CSF leak. I have discussed further complications such as heart attack, stroke, blood clots and blindness.
Mr Manenti understands the risks of surgery and he is keen to proceed.”

Independent medical evidence

[10] A AALD – 2.

Dr Tang

Mr Manenti was assessed on 9 December 2020 by Dr Tang in his capacity as independent medical consultant. Dr Tang provided a report dated 9 December 2020[11]. Dr Tang reported that at the time of his assessment, Mr Manenti was only receiving physiotherapy treatment and had been referred for injection therapy. Dr Tang reported:
“His current capacity is 6 hours per day and 3 days per week with restrictions. He states that the main barrier in regards to return to work is not the physical aspect, however, it is due to his psychological injuries. He states that he has been bullied and harassed at work by his supervisor to the point that he is now withdrawn, depressed, anxious and has lost up to 10 kilograms.”
[11] Reply at page 1.
Dr Tang reported that in discussion with Dr Elpedes-Bolina, Dr Elpedes-Bolina told him
Mr Manenti was “progressing poorly”. Dr Elpedes-Bolina told him Mr Manenti was “very distressed about what has happened at work” and it was his current psychological state which was “the most significant barrier for return to work to his pre-injury duties”.
Dr Elpedes-Bolina was unable to provide a time-frame for a return by Mr Manenti to working pre-injury hours with restrictions or pre-injury duties.

Dr Boland

Mr Manenti was reviewed on 5 March 2021 by Dr Boland, in his capacity as independent physiotherapy consultant. Dr Boland provided a report following his review of Mr Manenti[12]. Dr Boland noted that at the time of his review, Mr Manenti had an intercurrent claim for his hernia injury, which he said:
“significantly restricts his exercise and lifting capabilities, which should urge caution for any future approval for treatment to upgrade his lifting capacity because of the risk of re-injury or exacerbation of that injury.”
[12] Reply at page 8.
At that time, approval of further exercise physiology treatment and physiotherapy treatment focused on Mr Manenti’s neck injury was cautioned due to such treatment causing risk of
re-injury or exacerbation or Mr Manenti’s hernia injury.

Dr Oates

Mr Manenti was assessed by telehealth on 5 November 2021 by Dr Oates in his capacity as independent medical examiner. Dr Oates provided a report dated 12 November 2021[13]. It is evident from his report that at the time of assessment Dr Oates had available to him the clinical records of both Dr Suttor and Dr Hsu.
[13] ARD at page 21.

At the time of assessment Dr Oates noted Mr Manenti had not returned to work since he resigned from his employment with Sika earlier in the year. He noted Mr Manenti “had plans to return to work by the beginning 2022, perhaps in a less physical job, such as a building inspector or similar”. Dr Oates also noted that after Mr Manenti ceased work with Sika, he had come to successful surgical treatment for his right hernia injury on 24 April 2021 under the care of Dr Cloury .
Dr Oates reported that while Mr Manenti’s neck had improved over time, he remained symptomatic and as a consequence Mr Manenti was wary of returning to heavy physical work duties. He reported Mr Manenti’s medical management was currently anti-depressant medication and Panadol Osteo medication. Following review of the CT cervical spine and right shoulder and examination which was limited because of the telehealth nature of the assessment, in response to specific questioning Dr Oates relevantly provided opinion:
“The diagnosis is aggravation of right C4/5 severe facet joint arthropathy producing right sided neck pain and stiffness radiating to the right trapezius and associated with occipital headache and mechanical heaviness of the right arm.
…
I consider that the nature and conditions of employment performed on or around 9 September 2020 is the main contributing factor to aggravation, exacerbation and acceleration of pre-existing and previously asymptomatic right-sided C4/5 facet joint degenerative arthrosis.
…
He is unfit for his pre-injury duties, which contained a component of repetitive heavy lifting. He would be fit for the supervisory part of his duties in a concrete laboratory but not the arduous physical duties he was performing at the time of onset of his cervical spine injury.
He should avoid lifting over 15 – 18kg on an occasional basis and avoid lifting over 10kg on a more frequent basis. He should avoid work involving prolonged sedentary posture with the head forward flexed or head extended for sustained periods and avoid work which might require repetitive rotation of the head.
Work where he can have regular postural change between sitting or standing still and moving about is preferable to avoid a build up of static muscle tension in the injured area of the neck and upper spine.
…
He would benefit from undertaking a 12-week exercise physiologist supervised core strengthening program to strengthen musculature around the irritable facet joints in the cervical spine and reduce the risk of recurrent episodes of severe pain and muscle spasm in the cervical spine.
If there were exacerbations of his condition in the future, he might become a candidate for further interventional pain management modality of treatment, such as repeat of facet joint bloc injection followed by radiofrequency neurotomy to give longer lasting relief of 6 – 12 months.
In the alternative, he could be considered for C4/5 ACDF (anterior cervical discectomy and fusion) which would stabilise the affected segment where the irritable facet joint is located and avoid a tendency to instability at this level, as the aggravated degenerative changes worsen over time. This instability would manifest as episodes of acute neck pain and muscle spasm.”

Dr Smith

Mr Manenti was orthopaedically assessed on 7 April 2022 by Dr Smith in his capacity as independent medical examiner. Dr Smith provided a report dated 19 April 2022[14]. It is evident from his report that at the time of assessment Dr Smith had available to him a number of medical reports relevant to Mr Manenti, including those prepared by his general practitioner, Dr Elpedes-Bolina, his treating orthopaedic specialists, Dr Suttor and Dr Hsu, and also that prepared by Dr Oates. Dr Smith noted surgical treatment in the nature of a spinal fusion at C4-5 was proposed and noted too:
“Three weeks ago, he managed to get a job as a storeman doing light duties, however the income is less than half of what it was before.”
[14] R AALD
Following clinical examination and review of the diagnostic imaging reports made available to him, Dr Smith provided diagnosis in terms of symptomatic cervical degenerative disease, with Mr Manenti becoming symptomatic on 9 September 2020. However, Dr Smith also provided opinion:
“There are no symptoms present now consequent to any work injury that might be construed to be the result of some injury on 9 September 2020.
Any such exacerbation/aggravation that occurred on that day would have resolved of its own accord and left no disability after two or three months at the most. The proposed treatment of spinal fusion is to treat his neck arthritis, cervical degenerative disease, cervical spondylosis, whatever term one cares to use, which is a constitutional malady and long predated 2020.”
Relevant to Mr Manenti’s capacity to work (and I would suggest also relevant to treatment), Dr Smith said:
“I do not think he is being treated non-operatively as well as one would like. He would likely benefit from manipulative physiotherapy, including traction, augmented with an effective anti-inflammatory medication…
In the event he had significant improvement with this treatment regime and the symptoms reoccurred, he might benefit from using a cervical home traction kit.
It is conceivable that if he learns to manage his neck arthritis, he could return to more remunerative employment.”
In response to specific questioning as to whether the surgical treatment proposed by
Dr Hsu is reasonably necessary treatment for the injury Mr Manenti has sustained to his neck. Dr Smith provided opinion:
“operating C4-5 alone is not uncommonly successful, because there will be a 90 to 95% likelihood of a contribution to his neck symptoms from the degenerative process at C5-6 and C6-7. Sometimes it is necessary to fuse all three levels. Spinal fusion has a failure rate depending on the method chose and the number of levels attempted.”

Submissions

Mr Parker and Mr Morgan made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.

Determination
Capacity for work

Mr Manenti’s claim for weekly compensation between the period 22 May 2021 and 7 March 2022 is disputed.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
Section 37 of the 1987 Act provides for weekly payments during an injured worker’s second entitlement period. The provisions of s 37 of the 1987 Act requires consideration as to whether an injured worker has “current work capacity” or “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act:
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“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 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
the worker’s place or resident.”
Assessment of Mr Manenti’s capacity for work between 22 May 2021 and 7 March 2022 involves consideration as to whether during this period Mr Manenti had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act. This requires consideration of Mr Manenti’s capacity to undertake not only his pre-injury employment with Sika but also his capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar[15]. It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[15] [2014] NSWWCCPD 55 (Dewar).
It is apparent the physiotherapy treatment Mr Manenti was receiving for the injury he sustained to his neck on 9 September 2020 in the course of his employment with Sika ceased as a result of his right hernia injury and when Mr Manenti sought to recommence this physiotherapy treatment in or about April/May 2021 following surgical treatment and subsequent recovery of his hernia injury, Mr Manenti was notified he no longer had an entitlement to medical and related treatment or weekly compensation resulting from the injury he had sustained to his neck.
Mr Manenti explained “despite still experiencing psychological distress and pain and stiffness in my neck from my injuries” he commenced job seeking. Mr Manenti said “after applying for multiple roles” he eventually obtained employment as a storeman, being employment which Mr Manenti says accommodates his restrictions, and Mr Manenti is to be commended for the not inconsiderable effort he made to return to the workforce.
Approximately one month prior to the declinature of liability for Mr Manenti’s claim for compensation resulting from the injury he sustained to his neck, Dr Elpedes-Bolina noted
Mr Manenti continued to suffer “intermittent pain”, and it is evident from both the reporting of
Dr Elpedes-Bolina and Dr Hsu that during the discrete period in which Mr Manenti claims weekly compensation, Mr Manenti’s neck injury remained symptomatic. During this period, Mr Manenti came to repeat C4-5 facet joint injection and Dr Hsu provided opinion “surgical intervention is now necessary”. While Dr Hsu may not have provided specific comment on
Mr Manenti’s work capacity during this period it is clear that at the time of reporting on 19 November 2021, Dr Hsu did not consider Mr Manenti fit for his pre-injury duties in that he wrote:
“With timely intervention, his prognosis is good. The aim of the surgery is to return to pre-injury duties 6 to 12 months after surgery.”
When Mr Manenti was assessed by Dr Oates on 5 November 2021 while Dr Oates did not consider Mr Manenti fit for his pre-injury duties, Dr Oates accepted he would be fit to for supervisory duties. When Mr Manenti was assessed by Dr Smith on 7 April 2022 (being at a time that post-dates the period in which Mr Manenti claims weekly compensation and being at a time when Mr Manenti had returned to the workforce in employment that reportedly accommodates his restrictions) it is apparent Dr Smith considered Mr Manenti suffered an incapacity for work in that he wrote:
“It is conceivable that if he learns to manage his neck arthritis, he could return to more remunerative employment.”
While it is true Dr Elpedes-Bolina certified Mr Manenti fit for his pre-injury duties on 20 April 2021, such certification was downgraded on review on 26 July 2021 to having capacity for some type of work for “normal hours” and “normal days” and further downgraded on 27 January 2022 to total incapacity. Relevant to Dr Elpedes-Bolina’s certification that Mr Manenti had capacity for work during the period of Mr Manenti’s claim for weekly compensation I accept Mr Morgan’s submission regarding the evidentiary weight to be afforded such certification in light of Dr Tang’s reported attempt to persuade an upgrade in the certification of Mr Manenti’s capacity for work.
Mr Manenti’s physiotherapy treatment for his neck injury was initially “put on hold” due to his hernia injury and approval of subsequent physiotherapy treatment was not forthcoming due to the declinature of ongoing liability for his claim for compensation. However, Mr Manenti’s neck remained significantly symptomatic and on 3 September 2021 Dr Hsu made mention of the possibility of surgical treatment, and on 19 November 2021 Dr Hsu said surgical treatment “is now necessary”.
I have reviewed the evidence as a whole and I have careful considered counsels’ submissions. With Mr Manenti clearly unfit for his pre-injury duties, and with Mr Manenti’s neck evidently remaining significantly symptomatic during the discrete period of his claim for weekly compensation (so much so that Dr Hsu raised the possibility of surgical treatment in September 2021 and ultimately recommended surgical treatment in November 2021), and with Mr Manenti unable to secure suitable employment despite “applying for multiple roles” until he eventually obtained employment in a role which reportedly is able to accommodate his restrictions, on the balance of probabilities, I accept that between 22 May 2021 and 7 March 2022 Mr Manenti had no current work capacity.

Quantification of entitlement to weekly compensation

Mr Manenti’s PIAWE is agreed to be $1,688.92. I am satisfied that between 22 May 2021 and 7 March 2022 Mr Manenti had no current work capacity and accordingly Mr Manenti’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act during this period is payable at the rate of $1,351.14 each week (subject to indexation).

Treatment

While Mr Manenti has an entitlement to medical and related treatment payable under s 60 of the 1987 Act, Mr Manenti’s claim for the costs associated with proposed surgical treatment in the nature of a C4/5 anterior cervical decompression and fusion is disputed.
Section 60 of the 1987 Act provides:
“60 (1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)     any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c)     any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[16]. Burke CCJ said:
[16] (1986) 2 NSWCCR 32 (Rose).
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”

58.His Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

In Diab former Deputy President Roche in the Commission cited Rose with approval and provided a summary of the principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts”.
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case as discussed in Kooragang. In this matter Mr Manenti must establish that the work related injury he sustained to his neck while working with Sika materially contributed to the need for the proposed surgical treatment in the nature of C4/5 anterior cervical decompression and fusion. This requirement was confirmed by former Deputy Roche in the Workers Compensation Commission in Murphy v Allity Management Services Pty Ltd[17] where he stated:
“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 at [25] – [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.
Ms Murphy only has to establish, applying the common sense 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’ 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 surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[17] [2015] NSWWCCPD 49.

After he sustained injury to his neck on 9 September 2020 in the course of his employment with Sika, Mr Manenti initially came under the orthopaedic care of Dr Suttor. While in October 2020 Dr Suttor was optimistic Mr Manenti’s neck injury should resolve “over the next 2-3 months”, he cautioned recovery “may depend on his response to treatment” and I note Mr Manenti’s physiotherapy treatment ceased in early 2021 due to Mr Manenti sustaining hernia injury.
With Mr Manenti dissatisfied with his medical management under the care of Dr Suttor,
Mr Manenti came under the orthopaedic care of Dr Hsu. While in January 2021 Dr Hsu noted Mr Manenti’s symptoms to be improving, the physiotherapy treatment Mr Manenti was receiving for his neck injury unfortunately ceased shortly thereafter and following review of Mr Manenti by Dr Hsu in June 2021, Mr Manenti’s subsequent medical management included injection therapy, diagnostic imaging and (with conservative treatment having now been exhausted) recommendation for surgical treatment. Mr Manenti is reportedly keen to proceed with the surgical treatment Dr Hsu recommended and Dr Hsu has explained the aim of the surgical treatment is to enable Mr Manenti to return to his pre-injury duties within a year of such treatment. Dr Oates expressed opinion the surgical treatment proposed by
Dr Hsu is appropriate in that the surgical treatment “would stabilise the affected segment where the irritable facet joint is located and avoid a tendency to instability at this level” and while
Dr Smith quibbled with the likely success of the surgical treatment, he did not specifically say it was not appropriate treatment for the cervical spine condition Mr Manenti suffers.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, although Dr Smith provided opinion the proposed surgical treatment is to treat
Mr Manenti’s “neck arthritis, cervical degenerative disease, cervical spondylosis, whatever term one cares to use, which is a constitutional malady and long predated 2020”, I accept the injury Mr Manenti sustained to his neck on 9 September 2020 in the course of his employment with Sika materially contributed to the need for the proposed surgical treatment in the nature of C4/5 anterior cervical decompression and fusion. It is evident that despite conservative treatment of the injury Mr Manenti sustained to his neck on 9 September 2020 in the course of his employment with Sika, which included physiotherapy treatment and injection therapy, Mr Manenti’s neck has remained symptomatic and Dr Hsu has ultimately recommended surgical treatment. I consider the recommended surgical treatment to be reasonably necessary treatment for the injury Mr Manenti sustained on 9 September 2020 in the course of his employment with Sika, particularly so as Dr Hsu has said “the aim of the surgery is to return to pre-injury duties 6 to 12 months after surgery”.

SUMMARY

It is not disputed Mr Manenti sustained injury to his neck on 9 September 2020 in the course of his employment with Sika.
Mr Manenti’s PIAWE is agreed to be $1,688.92. Between 22 May 2021 and 7 March 2022 Mr Manenti had no current work capacity resulting from the injury he sustained to his neck. Mr Manenti has an entitlement to weekly compensation payable under s 37(1) of the 1987 Act at the rate of $1,351.14 (subject to indexation) during the period 22 May 2021 and 7 March 2022.
Mr Manenti has an entitlement to medical and related treatment payable under s 60 of the 1987 Act resulting from the injury he sustained to his neck on 9 September 2020. The proposed surgical treatment in the nature of a C4/5 anterior cervical decompression and fusion is reasonably necessary treatment for the injury Mr Manenti sustained to his neck.

[2022] NSWPIC 267

3 June 2022