McDonald v Woolworths Ltd
[2021] NSWPIC 43
•24 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McDonald v Woolworths Ltd [2021] NSWPIC 43 |
| APPLICANT: | Rosleyn McDonald |
| RESPONDENT: | Woolworths Ltd |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 24 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury and consequential condition; whether worker suffered injury or consequential condition to L2-L4 segments of her lumbar spine requiring surgery; applicant suffered injury to L4/5 segment in a fall in 2008, together with other accepted injuries; development of problems in other lumbar segments disputed; Held- the applicant did not discharge the onus of proof with respect to the presence of a relevant lumbar spine injury, as the evidence did not disclose the presence of relevant pathological change in the claimed body parts; Castro v State Transit Authority (NSW) [2000] NSWCC 12 discussed; it is not necessary for a worker to satisfy the requirements of an injury as defined in section 4 of the Workers Compensation Act 1987 in order to establish a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 followed; to establish a consequential condition, an applicant must demonstrate an unbroken chain which provides a relative causal explanation between the claimed condition and the original injury; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied; the applicant did not establish on the balance of probabilities that she suffered a consequential condition to the claimed body parts as a result either of the nature and conditions of her employment or as a result of a stumble at home which took place shortly after she underwent left lateral femoral nerve release surgery; award for the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
On 23 January 2008, Rosleyn McDonald (the applicant) was working for Woolworths Ltd (the respondent) at the Nowra store when she slipped on a grape and fell awkwardly onto her left side. In that fall, she suffered injury to her left arm, left groin, left knee and the L4/5 level of her lumbar spine.
The applicant eventually underwent left lateral femoral cutaneous nerve release on 24 June 2014 at the hands of Dr Bentivoglio. That surgery was paid for by the respondent. Following the surgery, she alleges she suffered severe pain in her back and was limping, causing her leg to give way and for her to stumble, which she says gave rise to significant further lumbar spine pathology.
Alternatively, the applicant alleges that over time, she developed significant pathology in her lower back owing to the nature and conditions of her employment or that her employment aggravated an underlying condition in her lumbar spine. In other words, the applicant alleges she suffered a consequential condition to her lower back as a result of the altered gait and favouring of her left leg brought about by the original fall on 23 January 2008, or a condition consequent upon the post-femoral release fall which she suffered at home shortly after the 2014 surgery.
On 2 February 2017, the applicant underwent an L2/L3 laminectomy. She seeks payment from the respondent for the cost of that surgery.
The respondent has denied liability for the applicant’s lower back injury at the L2/3 and L3/4 levels. In a section 54 notice dated 17 March 2015, the respondent denied liability on the basis the applicant had suffered an aggravation of an underlying condition which had since ceased. In a further dispute notice dated July 2018, the respondent maintained its denial of injury in response to a claim for the cost of the 2017 back surgery and for permanent impairment.
The applicant brings these proceedings seeking weekly compensation from 4 April 2020 to date and continuing, permanent impairment compensation and payment of reasonably necessary medical and treatment expenses including the cost of the 2017 surgery.
It should be noted that the applicant’s claim for weekly benefits commences from 4 April 2020 because, until that date she was being paid weekly benefits in respect of an unrelated injury to her left wrist which she had suffered on 27 April 2015. Once the weekly benefits in respect of that left wrist injury ceased, the applicant then attended her general practitioner and obtained a certificate of capacity certifying her as totally unfit for work as a result of the back injury and injury to her left groin arising from the 2008 incident.
ISSUES FOR DETERMINATION
In addition to the matters contained within the dispute notices, in its Reply, the respondent clarified its position as follows:
(a) The applicant suffered only an L4/5 level injury to her lumbar spine together with meralgia paraesthesia in the left thigh in the 2008 injury;
(b) The respondent does not admit any consequential conditions arising from the injuries referred to in (a) above, including a dispute in relation to the alleged fall in June 2014 and an associated L2/3 and L3/4 injury or consequential condition;
(c) The respondent disputes any allegations surrounding the nature and conditions of the applicant’s employment.
At the hearing, the applicant’s case was presented on the basis she had suffered a consequential condition to the relevant levels of her lumbar spine. No submissions were made in support of an allegation of injury by way of disease process, despite those matters being pleaded in the Application.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for hearing before me on 18 February 2021. On that occasion, Mr Allen Parker of counsel appeared for the applicant instructed by Ms Lauretta Bussoletti. Mr Larry Brazel of counsel appeared for the respondent instructed by Mr Sean Patterson.
The matter was unable to resolve and proceeded to hearing before me. I am satisfied the parties to the proceedings are aware of the effects of representations made in the pleadings. I have used my best endeavours to facilitate a resolution of the matter, however, the parties could not resolve their differences.
EVIDENCE
Documentary Evidence
The following documents were in evidence and taken into account in reaching this decision:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) Applicant’s Application to Admit Late Documents (AALD) dated 17 December 2020.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered an injury or consequential condition to the L2 to L4 areas of her lumbar spine
Notwithstanding the applicant primarily relying on a consequential condition to her lumbar spine, the Application pleaded an injury by way of aggravation of a disease process caused by the nature and conditions of the applicant’s employment. For the following reasons, I do not believe the applicant has satisfied the onus of proof in relation to either allegation.
It is uncontroversial to say an injury can arise both through a frank incident or by way of a disease process. In this matter, the applicant’s Independent Medical Examiner (IME) Dr Bodel has provided a number of reports in which he variously attributed the cause of the applicant’s L2-L4 lumbar spine issues to the original fall in 2008, to the nature and conditions of her employment and to the post-2014 surgery stumble at home.
In his first, dated 27 October 2015 Dr Bodel provided the following diagnosis with regards to the L2-L4 lumbar pathology:
“The diagnosis here is a disc injury at the lumbosacral junction. Initially this appeared to be just at the L4/5 level which was treated conservatively and she settled fairly well. She never completely recovered however and over time she has developed symptoms arising from a higher disc level without any specific additional accident or injury to cause that pathology. It is likely therefore that there was some damage to the upper levels in the early fall as it was quite a heavy fall. They remained asymptomatic but have steadily deteriorated over time. It is not unknown for an internal disc disruption to occur and not to present initially but then it will start to become more symptomatic, which appears to be the case in this circumstance.”
In my view, the difficulty with that opinion is it does not stand with the contemporaneous radiological evidence. An MRI taken on 12 May 2009 revealed the following with regards to the applicant’s lumbar spine:
“Findings: The conus medullaris terminates at approximately LV1. The T12/L1 and 1l/2 as well as L2/3 levels are· unremarkable. The canal, neuronal structures and facet joints as well as the remainder of the osseous structures are normal in appearance for age.
The L2/3 and L3/4 levels are unremarkable though in the lower lumbar region the canal is diffusely narrowed without being stenotic. This is primarily due to developmentally narrow pedicles.
At L4/S there is disc desiccation and a diffuse posterior annular bulge elevating the anterior theca and slightly extending to the left side. There is very subtle encroachment upon the left lateral recess. There is no associated nerve root swelling.”
That study, together with a lumbar X ray taken in 2008, demonstrate no evidence of injury, as that term is defined in section 4 of the Workers Compensation Act 1987 (the 1987 Act) to the higher lumbar levels in the 2008 fall.
There is no doubt “injury” in the workers compensation context requires a sudden or identifiable pathological change (see Castro v State Transit Authority (NSW) [2000] NSWCC 12). In my view, there is no evidence sufficient to support Dr Bodel’s opinion that the applicant suffered a frank injury to her upper lumbar levels in the 2008 fall.
In a supplementary report dated 10 February 2017, Dr Bodel was specifically asked whether the nature and conditions of the applicant’s employment and her altered walking gait as a result of the 2008 injury had caused the L2/3 and L3/4 pathology. Dr Bodel provided the following answer:
“At the time of my examination in August 2015, she had clinical evidence of wasting of the right thigh and a sensory loss in the L3 distribution on the right side with weakness of extension of the right knee. I am satisfied therefore that there is definite disc pathology, on the basis of that clinical examination 18 months ago in the distribution of the area which Professor Jaeger is now recommending for treatment.
I note that there was also the recommendation about the lateral cutaneous of the nerve decompression but the clinical findings at that time seemed discogenic in nature and the surgery as recommended is reasonable.
Clinically, this has risen as a consequence of the original fall which injured the back and the ongoing aggravation, acceleration, exacerbation and deterioration of that disease process throughout the lumbar spine subsequently.”
That report gives rise to the applicant’s contention that the nature and conditions of her employment have aggravated her lumbar spine condition, however, it does so on the presumption there was originally an injury to the L2-L4 discs in the 2008 fall, which her employment then aggravated. For the reasons I have already articulated, there is no evidence to support such an injury having taken place in the 2008 fall.
In a supplementary report dated 10 February 2017, Dr Bodel was specifically asked whether the nature and conditions of the applicant’s employment and her altered walking gait as a result of the 2008 injury had caused the L2/3 and L3/4 pathology. Dr Bodel provided the following answer:
“At the time of my examination in August 2015, she had clinical evidence of wasting of the right thigh and a sensory loss in the L3 distribution on the right side with weakness of extension of the right knee. I am satisfied therefore that there is definite disc pathology, on the basis of that clinical examination 18 months ago in the distribution of the area which Professor Jaeger is now recommending for treatment.
I note that there was also the recommendation about the lateral cutaneous release of the nerve decompression but the clinical findings at that time seemed discogenic in nature and the surgery as recommended is reasonable.
Clinically, this has risen as a consequence of the original fall which injured the back and the ongoing aggravation, acceleration, exacerbation and deterioration of that disease process throughout the lumbar spine subsequently.”
Once again, the difficulty with Dr Bodel’s opinion is the absence of any disc pathology at the relevant lumbar levels in the immediate aftermath of the 2008 fall. In other words, there is, in my view, an absence of evidence as to any relevant injury having been caused in the original fall for the subsequent employment to aggravate.
For these reasons, the applicant has failed to discharge the onus of proof regarding an injury suffered in the fall in 2008, whether by way of frank injury or aggravation of a disease process brought about by the nature and conditions of her employment.
With regards to the issue of consequential condition, the relevant test is set out in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar). In that case, Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At paragraph 35 and following, Roche DP stated:
“35. By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.
36. The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 (Davis); Vivaldo; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 (Turner)) and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).”
The Deputy President then referred to the facts of Kooragang and to the judgement of Kirby P (as he then was) at paragraph 462E:
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463–464:
‘The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.’
His Honour concluded that the Court was left with “an unbroken chain of undisputed evidence”. In combination, the facts went “beyond mere predisposing circumstances”. They combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train”. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”
At paragraph 55 of the decision in Kumar, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.”
The applicant’s submissions at the hearing were put on two bases. The first was she had suffered a consequential condition after the femoral nerve release surgery when she stumbled at home owing to her leg giving way, which in turn led to the need for the 2017 spinal surgery. The other basis is that over time, her gait altered which gave rise to the need for that surgery. The applicant’s evidence concerning the issues with her back is set out in four statements, three of which are contained in the application and the other in her AALD.
In her first statement, the applicant set out a history of having back pain for a number of years following the initial injury at work. She noted her back symptoms persisted up to and including 2013 and 2014. The applicant noted that on 24 June 2014, she underwent surgery at the hands of Dr Bentivoglio in the nature of a release of the lateral femoral cutaneous nerve in her left thigh. At paragraph 103 of her statement, the applicant states:
“On 18 July 2014, I was reviewed by Dr Hamer [her GP]. I still had pain and numbness on my thigh and could not stand for more than 10 minutes at a time. I also developed extreme pain across my lower back and into my buttock and then my leg.”
104. On 27 August 2014, I was reviewed by Dr Bentivoglio. I told him of my problem which had developed in my lower back and into my right hip and down the back of my thigh to the knee. Dr Bentivoglio suggested a repeat MRI scan of my lumbar spine and wrote to the insurer to seek approval.”
The applicant then recounts that in September 2014, she was reviewed by Dr Bentivoglio with her updated MRI which demonstrated two new disc prolapses at L2/3 and L3/4 which were jamming the L2 and L3 nerve roots. It was at this point in time Dr Bentivoglio suggested the applicant required surgery in the way of a hemilaminectomy of L3 and partial hemilaminectomy of L2 on the right side and wrote to the insurer seeking approval.
In her supplementary statement, the applicant clarified that after the initial injury in January 2008, she continued working until the week ending 22 June 2016, when she indicated she could no longer work because of her back condition. At paragraph 7 and following, the applicant said:
“I was limping after the [2008] fall. The limping put more strain on my back. The limping came and went but as time passed became very severe and Dr Casikar [the respondent’s IME] said this was common.”
At paragraph 19 of her supplementary statement, the applicant says:
“I was favouring my left leg and using my right leg a lot more after the surgery in 2015 [the femoral release surgery was actually in 2014]. I had nerve pain in my left leg so I could not put weight on it for any length of time. I recall that I would limp around at work. I was limping straight after my injury in 2008 until approximately 2010 and it deteriorated even further and got so bad that I had to go back and see Dr Bentivoglio for treatment.”
The applicant reiterated in her supplementary statement that she had been limping since her back injury in 2008, and that her limping had been caused by her back pain.
In a further supplementary statement, the applicant set out having had the lateral femoral cutaneous nerve release at the hands of Dr Bentivoglio on 24 June 2014. At paragraph 5 of her further supplementary statement, the applicant says:
“After that surgery, I had very severe pain in my left leg. Approximately five days after the surgery, I woke up from my sleep one night because of the severe pain in my left leg. I got up and was walking down the corridor when my back just gave way on me and my left leg collapsed and I fell. I had severe pain down into my right leg after this fall.”
In her second further supplementary statement which is attached to the AALD, the applicant said at paragraph 10:
“With respect to the laminectomy, I required urgent surgery and I did not have the opportunity to pursue a treatment dispute against the insurer. About a month after the left femoral nerve release surgery, I was limping at home in the hallway on my way to bed, when my right side gave way. I did not hit the floor but I leaned to my right side due to the severe pain. As a result of this hallway incident, I believe I suffered damage to the discs at L2 and L3 level, which I believe was from the recent surgery and also from altered walking gait following the 2008 work injury.”
In a further report dated 14 June 2018, Dr Bodel set out his opinion taking into account the stumble at home following the cutaneous nerve release. He stated:
“She has suffered a consequential condition with a disc rupture at the L2/3 level on the right-hand side which occurred as a result of the injury that occurred five days after her surgery done by Dr Bentivoglio to release the lateral cutaneous nerve of the left thigh. This excruciating pain caused her to collapse and give way and it was after that that she developed the increasing symptoms down the right leg and the two previous MRI scans that I have seen clearly shows that there was no pathology at the L2/3 level or L3/4 level prior to that event and that then there was a large right-sided disc prolapse at L2/3 following that event. I am satisfied therefore that there is a causal link between the episode of injury to the lower part of the back on 23 January 2008 and the consequential condition at the higher level for which the surgery has been undertaken.”
In that report at page 56 of the Application, Dr Bodel then reiterated, “this lady’s clinical condition is not a degenerative condition, nor is it a disease process of gradual onset. There is no evidence of aggravation, acceleration, exacerbation and deterioration in this case.”
It therefore appears that Dr Bodel’s opinion has altered between his initial reports in 2015 and his later opinions in 2018. Whether Dr Bodel had been appraised of the stumble following the cutaneous nerve release when he prepared his earlier reports, is unclear. Nevertheless, Dr Bodel has altered his view from there being a work-related aggravation of the applicant’s underlying lumbar condition at L2-L4 caused in the 2008 fall owing to the nature and conditions of her employment; to an alleged consequential condition brought about by a frank incident after the lateral femoral nerve release operation in 2014.
In my view, that discrepancy in opinion, without explanation between the various reports by Dr Bodel is problematic for the applicant.
In his first report, dated 27 October 2015, when requested to provide diagnosis Dr Bodel provided the opinion set out at [16] above.
When asked to provide further opinion as to whether or not the L2/3 and L3/4 disc prolapse and jamming nerve root were caused by the applicant’s walking with an uneven gait as a result of the injury sustained in 2008, Dr Bodel said:
“You have asked me to consider one very small aspect of this lady’s activities after the original injury in 2008 and that being “an uneven gait”. This lady has continued work. It is probable that there was some disruption of the discs, although minor in the form of an internal disc disruption which has become more apparent because of the nature and conditions of work in general, rather than just ‘uneven gait pattern’.”
In other words, Dr Bodel had reached the opinion in October 2015 that the applicant’s nature and conditions of employment had caused the disc rupture at the higher lumbar levels, against a background of some previously undiagnosed injury suffered in the 2008 fall.
As already noted, Dr Bodel’s initial opinion that there had been L2/3 and L3/4 lumbar damage done in the 2008 fall is not born out by the contemporaneous radiological evidence. Dr Bodel then provides conflicting opinions as to the cause of the L2/3 and L3/4 lumbar pathological changes.
In his report of 27 October 2015, Dr Bodel refers to the nature and conditions of employment as being the cause of those changes, however, by his final report dated 14 June 2018, he attributed the L2/3 disc rupture on the right-hand side as being caused by the stumble at home some five days after the 2014 left lateral cutaneous nerve root release.
Absent Dr Bodel providing an explanation as to why this variance in his opinions has taken place, in my view, they should not be preferred. They are not provided in a fair environment, nor is there sufficient basis for preferring them.
The applicant’s treating surgeon, Dr Bentivoglio likewise does not provide a definitive opinion to the effect that the applicant’s L2/3 and L3/4 lumbar symptoms are caused or are linked to her employment with the respondent. Whilst I accept the submission from the applicant that Dr Bentivoglio must have felt this was the case given he made a request for the respondent’s insurer to pay for the surgery, that of itself is not a sufficient evidentiary basis in my view to satisfy the onus of proof which the applicant bears, because he has not provided a report setting out an opinion as to why this is the case.
The applicant bears the onus of proving the L2/3 and L3/4 conditions which necessitated the laminectomy surgery in 2017 is work-related. In determining the cause of an injury, the Commission must apply the common-sense test of causation set out in Kooragang. In that matter, His Honour noted that each case where causation is an issue must be determined on its own facts and that what is required is a common sense evaluation of the causal chain.
Having regard to the medical evidence in this matter, I am not satisfied on the balance of probabilities that the applicant has established on a common-sense basis a causal link between the 2008 fall and the development of the lumbar spine symptoms. There is no explanation provided by Dr Bentivoglio as to the causal link between either the applicant’s fall in 2008 and any consequential condition developed in the L2/3 and L3/4 disc spaces. I do not say that as a criticism of Dr Bentivoglio, who is a treating specialist and as such often does not deal with notions of legal causation.
Dr Bodel, IME for the applicant, provides conflicting basis for the alleged causal connections, however, they cannot stand side by side in my opinion. He initially indicated the nature and conditions of the applicant’s employment had given rise to the lumbar symptoms at the higher level against the background of the 2008 fall, followed by an unexplained change in his opinion to indicate the stumble which the applicant suffered in 2014 approximately one week after the lateral femoral nerve release was the actual cause. Dr Bodel changed his opinion, as he is perfectly entitled to, but did so without providing an explanation as to why this was the case or in my opinion providing sufficient explanation to establish the causal nexus between the alleged consequential condition and the original injury. For his part, treating neurosurgeon, Associate Professor Jaeger who carried out the 2017 lumbar surgery, does not provide a report on causation.
On balance, I preferred the view of Dr Casikar, IME for the respondent to that of Dr Bodel. In his first report dated 11 October 2012, Dr Casikar noted that investigations of the applicant had been normal, indicating that her back symptoms were not a usual sciatic kind of pain but rather were linked to the paraesthesia which was eventually treated by way of nerve release in 2014.
In his second report dated 5 December 2014, Dr Casikar took a history of the applicant developing lower back pain following the nerve release surgery in June 2014, which he indicated were suggestive of sciatic nerve irritation. He noted the applicant said that because the problem in her left leg had lasted for many years, she had been favouring on the right side and in her opinion therefore developed a disc injury. After examining the lumbar spine MRI from 5 September 2014 which demonstrated the L2/3 and L3/4 disc protrusions,
Dr Casikar opined:
“It is difficult to connect her present medical condition with her old problem.
Dr Bentivoglio has also indicated that this is a new injury and is not related to her previous injury in 2008. I agree with Dr Bentivoglio that she requires a right hemilaminectomy and microdiscectomy of both levels. However, it will be difficult to indicate as a work-related compensable condition.”
Dr Casikar noted the spontaneous disc protrusions can occur without specific injury on a fairly regular basis and opined that the applicant’s condition was not an aggravation of a pre-existing condition or disease because the degenerative changes in her spine are very minimal.
In a further report dated 8 August 2016, Dr Casikar again noted the history of the applicant’s stumbling at home after the nerve release surgery in 2014. In that report, Dr Casikar noted there was no medical evidence to support the applicant’s continued symptoms and new problems in her right leg were related to the 2008 injury. In that report, Dr Casikar referred to “legal justification” to associate the applicant’s present symptoms for the injury of 2008, however, said it will be difficult to support that finding with any evidence-based medical opinion.
In his report dated 23 August 2018, Dr Casikar noted Dr Bodel’s change in opinion between the notes from conditions of the applicant’s employment having caused the L2/3 and L3/4 disc pathology to a view that it had been caused by the stumble at home following the cutaneous nerve release. Even taking into account all those opinions from Dr Bodel and the treating surgeons, Dr Casikar maintained his opinion.
In my view, for the reasons already set out, the applicant has failed to establish on the balance of probabilities a common-sense causal connection between the original injury in 2008 and any consequential condition developed in the upper levels of her lumbar spine. As noted, following the 2008 injury an MRI of the lumbar spine revealed no pathology at the L2/3 and L3/4 disc levels. The only pathology present was at L4/5. It was only when an MRI was conducted following the June 2014 surgery to release the femoral nerve that the pathology at the L2/3 and L3/4 disc levels was found to be present. The applicant has relied upon the IME opinion of Dr Bodel, however, that opinion has shifted as to causation. Whilst that shift is not necessarily fatal to the applicant’s case, Dr Bodel’s failure to provide an adequate explanation for it is.
Moreover, there is no adequate explanation on the part of Dr Bodel as to why the nature and conditions of the applicant’s employment would have caused such significant disc pathology in the applicant’s lumbar spine. Likewise, the applicant describes her incident at home following the June 2014 femoral nerve release surgery as “a stumble”. Whilst I do not doubt the applicant’s evidence that she experienced severe pain following that incident, the mechanics of the fall as described by her are not, in my view, sufficient to have caused such significant pathology. Alternatively, there is insufficient medical basis on the applicant’s own case to establish that any consequential condition to the lumbar spine at the relevant levels which required the operation in 2017 and which continued to cause her ongoing incapacity for employment were caused by either the injury in 2008, the stumble at home following the surgery in 2014 or the nature and conditions of her employment.
None of the applicant’s treating doctors provide any report which provides a causal connection between any aspect of her employment or the 2008 injury and the relevant lumbar pathology. Whilst the applicant quite rightly points out that the treating surgeon has requested payment for the operation and therefore must be of the view that it is causally linked to the applicant’s employment, no opinion or basis for that link is provided by the treating surgeon.
Accordingly, I am of the view that the applicant has not satisfied the onus of proof in demonstrating a causal link between relevant lumbar pathology and either the 2008 injury or a consequential condition arising from it.
This being the case, there will be an award for the respondent.
Cameron Burge
MEMBER
24 March 2021