McIlrick v Aruma Services NSW Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McIlrick v Aruma Services NSW Ltd [2023] NSWPIC 372
APPLICANT:	William McIlrick
RESPONDENT:	Aruma Services NSW Limited
Member:	John Isaksen
DATE OF DECISION:	26 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of L5/S1 spinal fusion; respondent disputes that proposed surgery is reasonably necessary as a result of work injury; reference to Murphy v Allity Management Services P/L as to whether injury materially contributes to the need for surgery; Held – proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5).
determinations made:	The Commission determines: 1. The applicant sustained an injury to his lumbar spine in the course of his employment with the respondent on or about 17 August 2019. 2. The L5/S1 spinal fusion proposed by Dr Siu is reasonably necessary as a result of the injury sustained by the applicant on 17 August 2019. The Commission orders: 3. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the L5/S1 spinal fusion proposed by Dr Siu, and the reasonably necessary expenses associated with that surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, William McIlrick, claims that he sustained an injury to his right shoulder and lower back on 17 August 2019 while employed as a disability support worker with the respondent, Aruma Services NSW Limited.
The applicant states that he was pushed into a steel filing cabinet by a client when he came to the aid of a female employee who was being confronted by this client.
The respondent concedes that the applicant sustained an injury to his right shoulder. The applicant has undergone surgery on his right shoulder on 3 February 2020, 22 February 2021 and 21 April 2021, and the costs of those operations have been met by the respondent.
The respondent concedes that the description of the incident provided by the applicant is capable of also causing an injury to the lower back.
The applicant seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pay the cost of a L5/S1 spinal fusion proposed by Dr Siu.
The respondent accepts that the proposed surgery is appropriate but disputes liability to pay for that surgery on the grounds that the need for this surgery is not as a result of the injury sustained by the applicant on 17 August 2019.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the L5/S1 spinal fusion proposed by Dr Siu is reasonably necessary as a result of an injury sustained by the applicant to his lumbar spine in the course of his employment with the respondent on 17 August 2019 (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 20 July 2023. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Hammond appeared for the applicant, instructed by Mr Young. Mr Phillip Perry appeared for the respondent, instructed by Mr Xu.
Mr Hammond objected to two investigation reports from Quantumcorp dated 23 February 2021 and 11 May 2022 being admitted into evidence on the grounds that those reports were not disclosed in any of the dispute notices issued on behalf of the respondent between
2 November 2021 and 4 June 2022.
I provided reasons after hearing submissions from counsel from parties on this issue for not allowing those reports into evidence. I made particular reference to Regulation 41 of the Workers Compensation Regulation 2016 and the decisions of Chown v Tony Madden Refrigeration Transport Ltd [2005] NSWWCCPD 159 (Chown) and Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90 (Sharma) when providing those reasons. Those reasons have been recorded.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents (but not the reports from Quantumcorp dated
23 February 2021 and 11 May 2022);
(c)    Application to Admit Late Documents filed by the applicant on 4 July 2023, and
(d)    Application to Admit Late Documents filed by the respondent on 17 July 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

The applicant’s evidence

The applicant has provided a statement dated 24 August 2022.
The applicant states that while at work with the respondent on 17 August 2019 he came to the aid of a female employee who was being confronted by this client. He states he was pushed by the client into the steel filing cabinet and landed heavily on his buttocks and sustained injury to his right shoulder and back.
The applicant states that he initially consulted his general practitioner, Dr Han, on
21 August 2019 and advised Dr Han that he had been suffering right shoulder and back pain since the incident at work.
The applicant states that he was referred to Dr Burrows for his right shoulder injury, but his back symptoms and referred pain continued without treatment. He states that he told his then general practitioner, Dr Wong, on 6 April 2021 of his history of back pain since the accident and that this pain was getting worse. The applicant was referred to Dr Siu, neurosurgeon.
The applicant states that he continues to have severe back pain with referred right leg pain. He states that he requires the surgery proposed by Dr Siu so that there can be reduction in his pain and that he might be able to regain some work capacity.

The medical evidence

There are clinical notes in evidence from Rural Medical Clinic from 8 October 2018 until
13 April 2021.
The entry made on 21 August 2019 by Dr Han includes:
“the male customer slammed him against the filing cabinet in the office
He had pain in right shoulder and back since then.”
The next entry on 28 August 2019 includes: “having rt shoulder and back pain” and “back – no vertebral and paravertebral tenderness, movement – normal” on examination.
The next entry on 4 September 2019 includes: “still having back pain and shoulder pain.”
An entry made by Dr Han on 2 October 2019 includes: “back pain – improving.”
There are then some 24 consultations recorded at the Rural Medical Clinic for the applicant between 24 October 2019 and 15 March 2021 in which there is no mention or reference to lower back pain, although an entry on 28 September 2020 includes “pain shooting down legs.” There is an entry on 28 May 2020 of “neck pain emerging as a problem.”
Dr Wong records on 6 April 2021 that the applicant has tenderness at the coccyx. There is a referral for a CT scan of the lumbosacral spine.
Dr Wong then records on 13 April 2021:
“back pain history:
Many years of back pain
- bulging disc (diagnosed in TRRH) – disability support worker; worked on the land until several years ago
Sciatica + +”
Dr Wong provides a referral to Dr Siu, neurosurgeon.
The initial Certificate of Capacity issued by Dr Han on 21 August 2019 only refers to right shoulder pain in the diagnosis of the work related injury, although there is also reference to pain in the back in the details of how the injury is related to work.
The next Certificate of Capacity issued on 28 August 2019 includes lower back pain as an injury sustained by the applicant. There are multiple Certificates of Capacity issued thereafter by doctors from Rural Medical Clinic for the rest of 2019 and throughout 2020 which include lower back pain as an injury sustained by the applicant.
There is a report from Melinda Tracey of Peak Conditioning dated 8 April 2020 which includes the following details:
“Mr Mcilrick reported his lower back pain to be located on the right side of his lower back, extending down into the right leg. He described the lower back pain as being an intermittent, sharp pain, and discussed a previous history of a prolapsed disc at L4-5. Mr Mcilrick reported that he believed the mechanism of injury flared up his previous disc injury. On the VAS, Mr Mcilrick reported his lower back pain to be a 7 /10 at its worst, a 1/10 at its least and a 1/10 at the time of the Peak Conditioning initial assessment.”
The initial report from Dr Siu dated 3 June 2021 contains the following details:
“Mr McIlrick is a 59-year-old who complains of a 22-month history of persistent low back and left leg pain. He recalls this began acutely following an alleged assault. I understand he was attending a client who pushed him against a filing cabinet violently. There has since been constant low back pain with some occasional sharp pain radiating to the left hamstrings. There is associating tingling down the left leg. The pain is exacerbated by lying flat, prolonged sitting and standing, and walking on an incline.”
Dr Siu refers to a CT scan of the lumbar spine from 6 April 2021 which demonstrates a grade 1 L5/S1 spondylolisthesis.
Dr Siu concludes:
“I think Mr McIlrick’s non-remitting low back and left leg pain is most reasonably attributable to his grade 1 L5/S1 spondylolisthesis. Although this is a pre-existing condition, his reported workplace incident has clearly caused a severe aggravation leading to ongoing pain and disability.”
Dr Siu writes a further report to Dr Wong on 29 July 2021 wherein he writes:
“I think again it is very evident Mr McIlrick is suffering from persistent severe left L5 nerve root pain secondary to his L5/S1 isthmic spondylolisthesis. This is directly caused by a workplace injury, leading to an aggravation of his underlying condition.”
The applicant underwent a L5 nerve block injection on 12 August 2021 at the direction of
Dr Siu. Dr Siu then writes in his report dated 26 August 2021 that the applicant is a good candidate for a spinal fusion. Dr Siu writes in a report dated 8 September 2021 that the applicant will benefit from a spinal fusion.
Dr Bodel, orthopaedic surgeon, has provided a report dated 2 February 2023 at the request of the lawyers for the applicant.
Dr Bodel lists the injuries sustained by the applicant on 17 August 2019 to be an injury to the right shoulder and to the neck. Dr Bodel does not record the applicant having any symptoms in the lower back immediately following the incident on 17 August 2019. However, Dr Bodel includes the applicant having pain and stiffness in the lower part of the back as part of the applicant’s current complaints.
Dr Bodel concludes that the applicant suffered an injury to his neck and right shoulder “and to a lesser extent his left shoulder and the lower part of the back” in the incident on
17 August 2019. Dr Bodel diagnoses the applicant having a soft tissue musculoligamentous injury and possible disc injury in the cervical and lumbar spine, as well as an injury to the right shoulder.
Dr Bodel opines that in the lower part of the back there was a disease process of gradual onset and there has been aggravation, acceleration, exacerbation and deterioration of the disease process in the back.
Dr Bodel considers that possible future treatment would include surgical stabilisation of the lower part of the back in the form of a fusion.
Dr Doig, orthopaedic surgeon, has provided reports at the request of the respondent dated 21 February 2022 and 28 June 2023.
In his report dated 21 February 2022, Dr Doig records that the applicant was thrown into a steel cabinet and then dropped onto his buttocks which resulted in the applicant suffering an injury to his back.
Dr Doig writes that the mechanism of injury of the applicant being thrown into a steel cabinet and then dropping onto his buttocks certainly could have resulted in a soft tissue injury to the lower back and aggravation of pre-existing degeneration. He writes that this should be confirmed with the initial treating practitioners given the delay in undergoing medical imaging.
Dr Doig opines:
“Mr McIlrick is presenting with significant arthritis in his lower back which was pre-existing and unrelated to the incident of August 2019. The assault however may have rendered the pathology symptomatic.”
In his report dated 28 June 2023, Dr Doig considers that the surgery proposed by Dr Siu may be symptomatically beneficial, although he would normally recommend a second opinion.
Dr Doig opines that “it would appear Mr McIlrick fully recovered from any symptomatic exacerbation of the pre-existing pathology in the lower back.” However, this opinion is based upon documents that have not been allowed into evidence.
A report has been provided by Dr Dennis from Rural Medical Clinic dated 21 June 2022. In that report Dr Dennis lists all the consultations which the applicant has had at Rural Medical Clinic from 21 August 2019 to 17 February 2022. Dr Dennis writes:
“The patient had a known disc prolapse at L4/L5. The symptoms of exacerbation did not come on immediately post assault/injury. They were minimal at best requiring simple analgesia which he did not take regularly and improved without attention. There was no evidence of bony or disc involvement at the time. It wasn’t til over 12 months later that the back pain became significant and a CT scan was ordered. In my opinion this doesn’t even count as an exacerbation of a pre-existing condition. However, I am not an orthopaedic or spinal surgeon.”

A summary of submissions

Mr Hammond for the applicant submits that the material from Dr Siu on its own is sufficient for the applicant to succeed with this particular claim before the Commission. Dr Siu acknowledges that the applicant has a pre-existing condition affecting his lower back, but also obtains details of the effects of the incident at work on 17 August 2019, and concludes that this incident has caused a severe aggravation to the condition of the applicant’s lower back.
Mr Hammond submits that there is particular strength in the opinion from Dr Siu because it is provided to the applicant’s general practitioner in the context of treatment and outside of the litigation process, which is a process which can cause experts to take particular positions on the issue of causation.
Mr Hammond refers to details of lower back pain in the report from Ms Tracey in April 2020, the entry made at the Rural Medical Clinic on 28 September 2020 of “pain shooting down legs” and the Certificates of Capacity issued in the latter part of 2019 and throughout 2020, as being contemporaneous records of ongoing lower back pain being experienced by the applicant before he is referred to Dr Siu.
Mr Perry for the respondent submits that the opinion from Dr Siu cannot be relied upon because Dr Siu does not have a correct history of the applicant’s complaints since the incident on 17 August 2019 when that history is placed against the clinical notes from the applicant’s general practitioners.
Mr Perry points out that the clinical notes from the applicant’s general practitioners record the applicant’s low back pain improving less than two months after the incident at work, and there is then no reference to low back pain in those notes for another 18 months. Mr Perry submits that this evidence does not support the history taken by Dr Siu of constant and non-remitting low back pain since the assault occasioned to the applicant.
Mr Perry submits that the record made by Dr Wong on 13 April 2021 of the applicant having low back pain for many years, and there being no attendances for lower back pain for the previous 18 months, supports a conclusion that while the applicant may have had a flare up of lower back symptoms for some weeks or months after the assault, the problems that the applicant had with his lower back which caused him to attend Dr Wong in April 2021 were due to long-standing degeneration of the lumbar spine and not related to the assault in the workplace.
Mr Perry points out that although there is a record made by Ms Tracey in April 2020 of the applicant still having back pain, that pain is only rated by the applicant at 1/10 at the time of that assessment, whereas the applicant had reported a pain level of 7/10 at its worst.
Mr Perry submits that this is consistent with the effects of the injury decreasing over time and that the problems which the applicant complained of 12 months later being due to a degenerative condition.
Mr Perry submits that the opinion from Dr Bodel is of no assistance to the applicant because Dr Bodel does not even record the applicant as having sustained an injury to his lower back and diagnoses the condition of the applicant’s lower back as being no more than a soft tissue musculoligamentous injury and possible disc injury to lumbar spine.
Mr Perry also submits that the lack of honesty by the applicant adds to the doubt I should have for the claim made by the applicant. He refers to the record made by Dr Doig in the report dated 21 February 2022 of the applicant being unable to return to horse riding and yet the applicant concedes that he has done horse riding since the work injury.

Determination

The respondent does not admit that the applicant sustained an injury to his lower back in the course of his employment with the respondent on 17 August 2019, although it concedes that the description of the incident provided by the applicant was capable of causing an injury to the lower back.
However, the available evidence supports a finding that the applicant did sustain an injury to his lower back in the course of his employment with the respondent on 17 August 2019. The details of the incident recorded by Dr Han four days after the incident and then later by
Dr Siu and Dr Doig are consistent with the applicant’s own evidence regarding the incident, being that the applicant felt pain in his lower back after being pushed into a steel filing cabinet. The respondent has not provided any evidence to challenge or dispute that evidence.
The onset of lower back pain after the applicant was pushed into a steel filing cabinet which caused the applicant to seek medical treatment a few days later is sufficient in the absence of any contrary evidence to meet the accepted definition of a ‘personal injury’ referred to by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 (Petkoska) at [39] of being “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.
There will therefore be a finding that the applicant sustained an injury to his lower back in the course of his employment with the respondent on 17 August 2019.
The critical issue between the parties, however, is whether the L5/S1 fusion surgery proposed by Dr Siu is reasonably necessary as a result of the injury.
The guiding authority on this issue is what was said by DP Roche in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) at [57]-[58]:
“…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.
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’ 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).”

The opinion provided by Dr Siu that the workplace incident caused a severe aggravation of a pre-existing lower back condition which now warrants surgery to relieve the symptoms caused by that workplace incident meets the test set in Murphy. Dr Siu acknowledges that the applicant has pre-existing L5/S1 spondylolisthesis, but the injury sustained on 17 August 2019 materially contributes to the need for the surgery due to the aggravation caused by that work injury.
I prefer and accept the opinion provided by Dr Siu. Dr Siu in his role as treating specialist is in the best position to provide an opinion on the causal connection between the injury sustained by the applicant on 17 August 2019 and the need for surgery. Dr Siu bears responsibility for the surgery which he recommends but that in turn is based upon his understanding of the cause of the applicant’s symptoms.
My acceptance of the opinion from Dr Siu is reinforced by his opinion being provided in the context of treatment rather than as part of the litigation process which the applicant has had to embark on. Dr Siu writes to the applicant’s general practitioner following the very first consultation and opines that the applicant’s “reported workplace incident has clearly caused a severe aggravation leading to ongoing pain and disability.”
Dr Siu maintains that opinion on the next occasion when he sees the applicant via telehealth on 29 July 2021 when he writes to Dr Wong and states that it is very evident that the direct cause for the applicant’s severe left L5 nerve root pain is the work injury, which has led to an aggravation of an underlying condition.
This is an opinion on causation which is volunteered by a treating specialist to his referring general practitioner on two separate occasions. It is not an opinion that is in response to a leading question from a lawyer. Dr Siu has sought details from the applicant as to how the lower back symptoms occurred and has examined the applicant and is confident in informing Dr Wong that the applicant’s pre-existing lower back condition has been aggravated by the work injury.
Dr Siu also provides his opinion on causation notwithstanding that he is aware that the only radiology taken of the lumbar spine occurs almost two years after the applicant’s work injury. That gap in time does not appear to cause Dr Siu any concern.
I do not agree with the submission made by Mr Perry that the opinion from Dr Siu should be discounted or disregarded on the basis that Dr Siu has recorded an incorrect or incomplete history of what has occurred to the applicant since his work injury in August 2019.
The history taken by Dr Siu that the applicant has had persistent low back pain since the work injury with an occasional experience of a sharp pain radiating to the left leg is consistent with other contemporaneous medical records.
There is the entry made by Dr Wong on 28 September 2020 of “pain shooting down legs”. Although there is no reference to the lower back in that entry, I find it reasonable to infer that the “pain shooting down legs” is a reference to referred pain from the lower back.
There is the report from Ms Tracey dated 8 April 2020. Ms Tracey writes that the applicant was 45 minutes late for his initial assessment which limited the objective data she obtained during this assessment. She also recorded the applicant having pain down his right leg whereas Dr Siu identified the applicant as having more significant symptoms down his left leg.
Mr Perry relies upon the details taken by Ms Tracey of the applicant only having a pain level of 1/10 at the time of her assessment to submit that those details are consistent with the effects of the injury decreasing over time and that the applicant’s problems now being only degenerative.
However, Ms Tracey also records that the applicant has always had some level of lower back pain since the work injury, even though that pain may have fluctuated over time. Those details recorded by Ms Tracey are consistent with Dr Siu’s understanding that the applicant has had persistent lower back pain since the work injury.
I have disregarded the opinions provided by Dr Dennis. It is apparent that she never examined the applicant prior to his referral to Dr Siu and the opinions she provides are merely based upon her review of the records made by other general practitioners at the Rural Medical Clinic. She also concedes that she is not an orthopaedic or spinal surgeon. I prefer the opinion that is provided by a treating neurosurgeon.
I also do not give any weight to the evidence from Dr Bodel. The history of the injury which Dr Bodel has recorded is contrary to the contemporaneous records that do not record the applicant as having any injury to his neck but having symptoms in his lower back. I cannot rely upon the opinion from Dr Bodel with any confidence.
I prefer the opinion provided by Dr Siu over the opinion from Dr Doig. A review outcome dated 16 December 2021 was issued by icare on behalf of the respondent wherein it maintained a decision to dispute liability for the surgery proposed by Dr Siu. That review outcome referred to several reports from Dr Siu, although not the initial report from Dr Siu dated 3 June 2021.
Yet despite the inclusion of reports from Dr Siu in that review outcome there is no reference in the first report from Dr Doig dated 21 February 2022 to the reports from Dr Siu. Dr Doig is asked to comment on the likely outcome of surgery to the lower back, but he makes no attempt to engage with the opinion of Dr Siu that the applicant continues to suffer the effects of the aggravation of a lower back condition as a result of the injury in August 2019.
In his supplementary report dated 28 June 2023, Dr Doig refers to “additional documentation, including general practitioner consultations and notations, and Mr McIlrick’s social media entries.” Dr Doig refers to the opinion from Dr Bodel and is aware of proposed spinal fusion surgery, but he does not engage with the opinion from Dr Siu on the critical issue in this dispute as to whether the work injury materially contributes to the need for surgery.
I also do not consider that the applicant’s claim has been negated by the record made by
Dr Doig that the applicant has been unable to return to horse riding when the applicant concedes that he has done some horse riding, without there being some further interrogation by Dr Doig. I agree with the submission made by Mr Hammond that in the absence of any further information, there may have been a misunderstanding between Dr Doig and the applicant on this issue.
I have preferred the opinion of Dr Siu in his role as the applicant’s treating specialist on the question of whether the surgery which he proposes is reasonably necessary as a result of the injury sustained by the applicant. I have referred to contemporaneous medical records which supports the claim made by the applicant that he had an onset of lower back pain following the assault occasion to him on 17 August 2019 and that he continued to have persistent low back pain until he saw Dr Siu in June 2021.
I have provided my reasons as to why I am satisfied that the respondent should meet the costs of the L5/S1 spinal fusion proposed by Dr Siu pursuant to s 60 of the 1987 Act.
There will be an order that the respondent is to pay the costs of the L5/S1 spinal fusion proposed by Dr Siu, and the reasonably necessary expenses incidental to that surgery.

[2023] NSWPIC 372

26 July 2023