McQuillan v Sean Mitchell Agencies

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McQuillan v Sean Mitchell Agencies [2024] NSWPIC 202
APPLICANT:	Brett McQuillan
RESPONDENT:	Sean Mitchell Agencies
MEMBER:	Mitchell Strachan
DATE OF DECISION:	22 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses; whether fusion surgery reasonably necessary; whether need for surgery results from pleaded injury on 15 July 2015; applicant carries onus of proof; Held – proposed surgery reasonably necessary treatment; need for surgery does not result from injury on 15 July 2015; there is an award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery proposed by Dr Singh is reasonably necessary treatment within the meaning of s 60 of the Workers Compensation Act 1987. 2. The need for the proposed surgery does not result from injury sustained by the applicant on 15 July 2015. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Brett McQuillan (the applicant) was employed by Sean Mitchell Agencies (the respondent) as a factory manager for a period of 24 years.
He sustained an injury to his lumbar spine in the course of his employment with the respondent in 2005 and as a result of that injury he came to an L4/5 microdiscectomy with the insertion of a Wallis device in 2006.
He returned to work with the respondent.
There was a work related aggravation of his symptoms in the lumbar spine in 2011 on the background of a busy period at work and again in 2013 on the background of a motor vehicle accident.
There is no dispute that the applicant sustained a further injury to his lumbar spine in the course of his employment on 17 July 2015. The precise nature of the accepted injury was not pleaded however it is evident from the applicant’s evidence that he is asserted an aggravation injury of the underlying pathology in the lumbar spine dating back to at least the 2005 injury.
The applicant makes a claim for medical treatment proposed by Dr Singh being a posterior fusion procedure the need for which the applicant asserts results from the injury on
15 July 2015.

ISSUES FOR DETERMINATION

The claim for weekly compensation was discontinued by the applicant.
As such, the parties agreed that the following issue remained in dispute for determination by me:
(a) whether the surgery proposed by Dr Singh, being a posterior fusion procedure, is reasonably necessary as a result of an injury sustained by the applicant on
15 July 2015.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing in person on
2 April 2024. The applicant was represented by Mr Carney of counsel, instructed by
Mr Simpson of PK Simpson Lawyers. The respondent was represented by Mr Paul Barnes of counsel. There was no attendance on behalf of the insurer, EML.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Oral evidence

Neither party sought leave to adduce any oral evidence or cross-examine any witness.

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents, and
(b) Reply and attached documents.
The attachments to the Application included reports from three qualified doctors namely
Dr Calvin Chien, Dr John Bentigovlio and Dr J Brian Stephenson. The respondent objected to the reliance by the applicant on more than one qualified medical expert in accordance with cl 44 of the Workers Compensation Regulation 2016.
The applicant elected to rely on the report of Dr Calvin Chien and as such the reports of
Dr Bentivoglio and Dr Stephenson are excluded from the material before the Commission.
The applicant had filed an application to admit late documents however did not press for the admission of those documents noting they only went to the issue of weekly compensation, the claim for which has been discontinued.

Applicant’s evidence

The applicant relies on three statements.
The first is a detailed handwritten statement dated 14 May 2018. The statement appears to have been prepared by the applicant himself without the assistance of a solicitor and there appears to be a truncation of time, however it describes various incidents and issues with his employment between 2015 and 2018.
The statement sets out the applicant’s description of the 15 July 2015 injury:
“I was made to try to move a large boulder that was in our showroom, the rock would weigh about a tonne (1000kg) it was around Dec/Jan 2016/2017 not positive on dates.”
The applicant gives an account of what took place prior to his assisting further in moving the rock and then continues:
“I started to use the jackhammer it was tough going trying to hold it as it vibrated into the rock, using strength from your core to push the hammer, then hold it in place to break up the rock a bit at a time… it took a few hours to get the boulder down to 700kg.”
The rock was then placed on a forklift and taken outside but as the forklift did not have a tilt function it needed to be pushed off the tines of the forklift. There was some discussion as to whether the applicant should assist with this but ultimately the applicant did assist and asserts:
“I positioned myself between the machine and the boulder at about 90^o angle body position and with help from the other guys we managed to push the rock onto the garden. While pushing, I felt my back and stomach take the strain of moving such a large boulder. I could feel pressure of pushing the rock on my spine which caused me pains and aches in my back, legs and stomach. As I have pain all the time, I thought I had flared it up and the pain would go away, the aches and pain stayed for a while but settled down after a few weeks.”
The applicant then gives a history of a separate recurrence of symptoms when the employer asked him to help put up approximately 30 pieces of a slat wall in a new showroom. The applicant says the pieces weighed about 60kg each and required climbing a scaffold. He refused to assist for about six weeks until he was approached by the wife of his boss and asked to assist and did so ‘to shut them up’. The applicant states:
“This job took about a week, I was in pain most of the time and just to get the job over with. In the next few weeks I had pain in my legs, back and stomach all from doing this job which was against my medical lifting limits, which the company knows. I was so angry I called my lawyer and told him I wanted to make a claim for the pain I was in. My lawyer told me I have a claim but have to wait 6 months before the injury settles to check what degree of injury.”
The applicant says that after six months the lawyer called him and asked if he was going ahead with the claim and he told them “No”.
The applicant provides detail of investigations for a “weird lump in my stomach” in about
July 2017 which is not the subject of the current proceedings.
The applicant then states that subsequently a container arrived from Indonesia which had to be manually unloaded of up to 700 boxes. He states:
“At the end of the day bringing in all the boxes by carrying them, my back was in compression which causes me pain in back, legs, feet and stomach. 4 -5 containers come in a year on average.
I should not have been doing this sort of work but seem to have no choice, the job must get done, normally Graham, myself, Aiden and sometime Liam do this job, the sorting out in the factory of the boxes which can weight up to 50kg each, after all the boxes are in the factory from unpacking container can take up to a week, all done by hand lift. We got the job done but as always I was in pain for sometime after unpacking container.”
In October 2017 the applicant went on forced leave and was then made to take long service leave which was to finish on 7 June 2018 (after the statement was prepared and signed).
The applicant relies on a further typed statement dated 3 June 2022 which summaries the injury on 15 June 2015 involving the boulder on the forklift and the applicant states:
“Whilst pushing the sandstone I suffered injury to my neck, back and both legs. I also felt a strain in my abdominal muscles. This settled in the following weeks but I had some degree of pain present in my back with symptoms radiating down my legs.
Due to the nature and conditions of my employment I suffered further injury to my lumbar spine.”
The applicant continues to set out the surgical treatment proposed by Dr Singh, his treatment to date and then provide a list of his ongoing disabilities.
In his third statement of 4 August 2023 the applicant details, in limited terms, the initial injury sustained on 15 June 2005 and the second injury on 15 July 2015.

Medical reports

Medico-legal reports

Dr Calvin Chien, orthopaedic surgeon, provided a report to the applicant’s solicitor dated
23 November 2023.
Dr Chien notes that the applicant has known L4/5 pathology that arose from work and which surgery was required however the applicant now exhibits symptoms of radiculopathy and had pathology at L3/4, L4/5 and L5/S1. He notes that he has failed non-operative management for his new symptoms and surgery should be considered. Dr Chien agreed that if surgery was to be performed, it should involve the three levels as proposed by Dr Singh.
Dr Chien considered the applicant’s Scheuermann’s disease to be irrelevant and whether he had Scheuermann’s disease or not he would have still had the work related injury to the L4/5 level.
Dr Anthony Smith provided a number of reports to the respondent’s insurer and solicitor. In his first report dated 7 April 2021, Dr Smith records an injury on 1 June 2018 when the applicant was instructed to move a boulder (clearly a reference to the 2015 injury). Dr Smith provided a detailed review of the radiology scans made available to him from 2005, 2011, 2013 and 2020.
Dr Smith records that the applicant had no back problems prior to 2005 although had back symptoms off and on since 1997. He records that the applicant took no time off until the incident moving the boulder, which occurred in all probability in November 2015.
Dr Smith considered the applicant has degenerative spinal disease affecting his neck, thoracic spine and lumbar spine in addition to Scheuermann’s disease in the thoracic and lumbar spine.
Dr Smith opines that:
“There are no symptoms present now, consequently incident work that occurs in November 2015 moving the boulder. Any aggravation to his lumbar pathology sustained on that occasion, would have resolved of its own accord and left no disability after three months at the most, or more likely than not, two or three weeks. He has been having intermittent symptoms on and off since 2005.”
Dr Smith considered that the surgery proposed by Dr Singh is treating underlying pathology dating back before the 2005 injury.
Dr Smith considered that the posterior fusion procedure (which is now all that is proposed by Dr Singh and sought by the applicant) would have an 85% chance of achieving as good an outcome as it surgically possible. He did not support the subsequent anterior approach surgery which is no longer proposed.
Dr Smith provided a supplementary report dated 17 January 2021 confirming his opinion that no symptoms present in December 2021 resulted from any incident in 2018.
Dr Smith re-examined the applicant and provided a further report dated 22 May 2023. He maintains the opinion that if there was documented workplace accident or injury precipitating symptoms on 17 July 2015 it has resolved and left no disability of itself. He maintains that it would have resolved after a week or two, three months at most.
In a report of 9 June 2023, Dr Smith was asked to comment on a report of Dr Gambier, who the applicant appears to have attended for a further opinion. No reports of Dr Gambier are before the Commission. Dr Smith expresses concerns with a proposal by Dr Gambier for a posterior interbody fusion at L4-5 and L5-S1 as it is difficult to see the endplates properly and therefore properly prepare them resulting in a high failure of fusion rates.

Reports of treating doctors

I have reviewed the reports of Dr Seex. Available records suggest there was an aggravation of leg and back discomfort around November 2011. Dr Seex noted imaging showed progressive degeneration compared to 2005 with degeneration of the last three discs more marked than before. He noted the applicant was about 120kg and he considered there was a combination of genetics, occupation and body habitus that were contributing to the degeneration. He did not consider there was any indication for surgical management.
The applicant’s treating spinal surgeon, Dr Bhisham Singh provided a report dated
17 April 2022.
Dr Singh first consulted the applicant on 19 May 2020, almost five years after the
17 July 2015 injury and subsequently consulted the applicant on a further 10 occasions up to 31 March 2022.
Dr Singh recorded a history that the applicant had lower back and leg pain secondary to workplace injuries to his lumbar spine and abdomen. He notes an earlier workplace injury with sciatica resulting in L4/5 discectomy and the insertion of a Wallis implant.
He recorded that the applicant has ongoing irritation of the L5 nerve root around L4/5 and also disc bulges at L5/S1 with a left sided disc bulge at L3/4 and generalised loss of disc height and disc bulging from L4 to S1. He diagnosed discogenic back and leg pain.
Dr Singh noted that the applicant continued to be concerned by “the injury that he had at the time, which resulted in divarication of the rectus abdominis muscles” that continues to bother him.
Dr Singh considered that the injury was work related. He does not agree with the opinion of Dr Smith that there would be no symptoms present after an injury to the lower back after three months from the date. He then notes:
“this patient was asymptomatic prior to the exacerbation in the workplace when he was asked to do heavy work instead of light duties. He has previously had surgery, and has some changes secondary to that. However, he now has disc building at adjacent level is at L3/4 and L5/S1.”
Dr Singh noted that the claimant had been diligent with conservative treatment and physiotherapy. He offered the opinion that the need for surgery was due to the exhaustion of nonoperative options, and work and aggravation in the workplace are the main contributing factors to the need for surgery.

Clinical notes

I was not taken to the treating clinical notes appearing in the Application by either counsel for the applicant or counsel for the respondent and raised this with Mr Carney during submissions noting the applicant had included a significant volume of clinical material to the Application. Dr Carney did not take them to be but submitted the records from Workers Doctors showed ongoing complaints.
As at the time of the 15 July 2015 injury, the applicant was regularly attending on Dr Gary Anderson of Astley Medical Centre with respect to a number of general medical issues.
On 4 August 2014, the year prior to the 15 July 2015 injury, the applicant saw Dr Cassie Lin at Astley Medical centre complaining of “lower back pain for few days, worse if sitting down for too long, started after prolonged sitting driving in truck…”
On 29 September 2014 the applicant saw Dr Kim Clarke at Astley Medical Centre complaining of “back pain, weakness in toes…” The general practitioner discussed with the applicant the possible relationship between “damage spinal level v periph nn issue related to NIDDM” the latter being peripheral neuropathy related to diabetes.
On 24 October 2014 the applicant saw Dr Gary Anderson at the same medical practice who noted “complicated hx – as Dm/chronic spinal injury post op/ and MVA and subsequent exacerbation”.
On 8 July 2015, the week prior to the 15 July 2025 injury, the applicant attends on
Dr Anderson who notes “see thermal study – low grade neuropathy, no explaining his motor loss feet – I suspect more spinal related”.
On 8 September 2015 Dr Anderson records “Back pain – acute on chronic, pushing rocks in showroom 5 weeks ago, felt pain in lower back, more sciatica left leg since”.
On 29 September 2015, Dr Anderson records, among other issues “ongoing back issues”.
On 27 February 2016 Dr Anderson records “Back and leg pain, too much heavy duties at work, chance in direction of company – more heavy lifting needed, job may no longer be suitable for pt…”
The applicant continues to see general practitioners at Astley Medical Centre through 2016 however there is no further mention of back complaints until 22 February 2017 when the claimant reported “moving shipment of goods in January – heavy workload, his chronic back issues has flared since, some intermittent L) leg symptoms, pt will document at work, conservative management for now.”
Again through 2017 the applicant continued to see general practitioners at Astley Medical Centre but did not make further back complaints until 2 January 2018 when Dr Anderson recorded “back pain with referred leg pain, exacerbated after lifted 40kg truck tyres (at new job), usual intermittent leg symptoms, walks without difficulty, usual conservative measures, avoid lifting, exercises +/- physio”.
I have considered the records of Workers Doctors but note the applicant did not commence attending on them until 2020, almost two years after he ceased work with the respondent and after numerous further work related incidents set out above. They do not assist in determining any relationship between the 2015 incident and the need for proposed surgery.

SUBMISSIONS

The submissions of the parties during the arbitration were recorded and I will not repeat each of the arguments of counsel in these reasons however the key issues are summarised below.
Submissions on behalf of the respondent were brief with counsel for the respondent limiting them to a review of the evidence attached to the respondent’s reply and the assertions made in the notices issued by the respondent’s insurer pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The respondent submitted that having regard to the various reports of Dr Smith and the issues set out in notices issued by the respondent’s insurer pursuant to s 78 of the 1998 Act, I would not be satisfied that the proposed surgery was treating symptoms resulting from the 2015 injury and the requirements of s 60 of the Workers Compensation Act 1987 (the 1987 Act) had not been met.
The applicant submitted, based on the history of injury recorded in the statements of the applicant and the opinions of Dr Chien and Dr Singh, that while superimposed on the 2005 injury that the need for the fusion surgery recommended by Dr Singh is reasonably necessary and results from the 2015 injury.
It was not pleaded, nor advanced in submissions, that the need for surgery proposed by
Dr Singh resulted from either the significant injury in 2005 resulting in spinal surgery in 2006 or the overall nature and conditions of employment which, as set out in the applicant’s statement were often heavy and strenuous despite apparent lifting restrictions from 2005 onwards.

FINDINGS AND REASONS

Appropriateness of treatment

The respondent did not concede that the treatment proposed by Dr Singh and sought by the applicant was reasonably necessary treatment for the purpose of s 60 of the 1987 Act.
The respondent’s submission with respect to whether the surgery was reasonably necessary was essentially that Dr Smith was somewhat equivocal in his opinion.

The applicant now seeks a posterior fusion procedure from L3 to S1.
Deputy President Roche at [88] in Diab v NRMA Insurance Ltd [2014] NSWWCCPD 72 considered the criteria, that may be taken into account when considering a claim for the cost of medical expenses pursuant to s 60 of the 1987 Act.
They are:
i)     the appropriateness of the particular treatment;
ii)     the availability of alternative treatment, and its potential effectiveness;
iii)    the cost of the treatment;
iv)    the actual or potential effectiveness of the treatment, and
v)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
Dr Chien in his report of 23 November 2023 noted the applicant was still in pain and not responding to non-operative treatment and had no improvement after more than four years. He noted the next line of treatment is surgical decompression, stabilisation and fusion. It would treat his leg pain although would have less of an impact on his localised back pain.
Dr Singh, in his report of 18 April 2022 noted the applicant had clear symptomatic structural pathology in the lumbar spine and that treatment options included chronic pain management, ongoing physiotherapy and surgery. He noted that he was not responding to conservative treatment after trying for more than three years and that surgical stabilisation is reasonably necessary and appropriate.
Dr Smith, in his initial substantial report of 7 April 2021 noted that the applicant was at that time 53 years of age and it was unreasonable to consider an anterior and posterior procedure. He noted that if the applicant was to proceed with a posterior procedure only there would be an 85% chance that the applicant would achieve as good an outcome as is surgically possible. On that basis he could not justify a further operation (presumably from an anterior approach) a week or so later.
In his report of 22 May 2023 Dr Smith notes that an anterior interbody fusion had apparently been suggested but noted he had not seen any reports from Dr Gambier. He provided a further report on 9 June 2023 which raised concerns with a posterior approach.
I have difficulty in reconciling the opinion expressed by Dr Smith in his report of 9 June 2023 cautioning against a posterior approach with his earlier opinion in his report of 7 April 2021 that a posterior approach would provide an 85% chance of a good an outcome as is surgically possible.
The report of Dr Gambier is not before the Commission. This was noted by Mr Barnes in submissions. He raised this but did not go as far as to submit I ought to draw in inference from this in accordance with the principles in Jones v Dunkel (1959) 101 CLR 296. I decline to do so, Dr Smith was clearly provided with a copy of Dr Gambier’s report by the solicitor for the respondent prior to preparation of his 9 June 2023 report. The report was available to both parties and either party could have brought the report into evidence before the Commission, but neither elected to do so.
While there is some dispute as to the best approach to the surgery, the applicant is now seeking only a posterior approach.
Turning to the principles in Diab there is no real dispute, even from Dr Smith, that surgical stabilisation of the lumbar spine by way of a fusion procedure is likely to bring the applicant relief from ongoing pain. The need for surgery is supported by the treating surgeon, Dr Singh and Dr Chien. Both Dr Singh and Dr Chien note that conservative options have been exhausted.
The fact that surgery would relief some symptoms is not disputed in the evidence of
Dr Smith.
No issue has been raised during submissions or in the evidence as to the cost of the surgery.
Dr Singh, Dr Chien and Dr Smith all support a high probability of success, from at least a surgical perspective in relieving leg pain.
I consider that the precise nature of the surgical procedure is best left to the clinical judgment of Dr Singh who has consulted the applicant on a large number of occasions over a period of years and I accept his opinion in this regard.
Having given regard to the totality of the medical evidence including the opinions of Dr Smith, Dr Chien and Dr Singh, and placing particular weight (with respect to the need for and nature of surgical treatment for the applicant’s current symptoms) on the opinion of Dr Singh as his treating surgeon, I find that the proposed surgery is reasonably necessary within the meaning of s 60 of the 1987 Act.

Does the need for treatment “result from” the 15 July 2015 injury?

Having found the surgery proposed by Dr Singh is “reasonably necessary” treatment, the remaining issue to be determined is whether the need for the proposed surgery results from the injury on 15 July 2015.
It is evident that the applicant has a significant history of complaints with respect to his lumbar spine dating back to at least 2005 (and possibly as early as 1997). He first came to lumbar spine surgery in the form of decompression surgery and the insertion of the Wallis device in 2006.
There were several further aggravations which saw him seek treatment in at least 2011 in the context of a busy period at work and 2013 following a motor vehicle accident. It is not suggested the motor vehicle accident was work related.
There is no dispute between the parties that there was a further injury on 17 July 2015, liability for which was accepted by the respondent’s insurer.
There is a suggestion of a further injury on 1 June 2018 however this appears to be the date that the applicant ceased work and then relied upon by Dr Lim of Workers Doctors who the applicant did not actually consult for the first time until 14 April 2020.
The precise nature of the injury in 2015 is not pleaded by the applicant however it is evident from the statement of the applicant that it has been approached as an aggravation of the underlying pathology in the lumbar spine.
Section 60(1) of the 1987 Act provides:
“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).”
The applicant bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Nguyen v Cosmopolitan Homes[2008] NSWCA 246.
In Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452 (Kooragang), Kirby P stated [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.”
Further, his Honour stated 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 common sense 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.”
The High Court in Comcare v Martin ( 2016) HCA 43 (Martin) considered the extent to which one can rely on a “common sense approach”. In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 3 (2005) HCA 26, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd (1991) HCA 12, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence’.”
Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
In Murphy v Allity Management Services Pty Ltd[2015] NSWWCCPD 49. Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd(1979) 53 WCR 167; ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]- [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716.”
Kirk JA considered the test in s 9A of the 1987 Act in the recent decision of Fisher v Nonconformist Pty Ltd[2024] NSWCA 32 together with the meaning of “substantial contributing factor” and “common sense causation”. Kirk JA at [107] said:
“The notion of common sense in legal causation has been employed to connote a number of ideas, including the following. First, it is used to indicate that it is an evaluative question of fact, to be assessed in a practical manner. That seems to be the sense it was used in Hunt & Hunt and other such judgments. Historically, this point was linked to the fact that questions of causation were often matters for a jury, and the High Court discouraged “judicial directions containing theoretical analysis and exposition”: see Booth at [65]. As senior counsel for Ms Fisher himself put it, “at the end of the day, if it’s meant to indicate that an evaluative process is informed by the sense of the person applying it, it’s hardly remarkable”. It was on that basis that senior counsel said that the appellants did not need to challenge the statement made in the joint judgment in Badawi that causation “is a fact-laden conclusion which the courts have been told must be based on common sense” (at [81], citing March v Stramare and Nunan). Kirby P’s statement in Kooragang that “[w]hat is required is a commonsense evaluation of the causal chain” is of a similar nature (at 463-464).”
And at [111]:
“In this context, two members of the High Court have recently gone so far as to say that ‘the concept of common sense should be eschewed when applying the principles of causation’: Young v Chief Executive Officer (Housing)[2023]HCA 31; [2023] HCA 31; (2023) 97 ALJR 840 at [60] per Gordon and Edelman JJ. As is implicit in that statement, there are some dangers in invoking common sense in evaluating causation issues. In particular that is so if the notion distracts from either the need to consider any normative and policy-based limitations on the broad reach of the “but for” test of causation or, relatedly, the need to consider the nature of any statutory causation test in its particular statutory context. This does not mean, however, that any invocation of common sense involves legal error.”
I am not entitled to apply a common sense approach at large or on its own in determination of the dispute. Issues in dispute must be determined by a careful analysis of the evidence.
While the evidence of the applicant lacks some clarity in terms of the timeline of the various complaints, issues and injuries, these can be largely ascertained with reference to the contemporaneous records of Astley Medical Centre.
It is evident from these records that the applicant’s lumbar spine condition was not asymptomatic in the period prior to the 15 July 2015 injury and the applicant appropriately concedes this in his initial statement when he states “As I have pain all the time, I thought I had a flare up…”.
While the applicant in his statement records the injury to his lumbar spine involving the boulder in the showroom as occurring in “Dec/Jan 2016/2017”, Dr Anderson records a contemporaneous record of it occurring five weeks prior to the 8 September 2015 attendance which accords with the injury occurring on or about 15 July 2015.
With reference to the boulder injury the applicant states “the aches and pain stayed for a while but settled down after a few weeks.” I have no reason not to accept the applicant’s evidence on this issue but again it is supported by the Astley Medical Centre records which record:
“ongoing back issues’ on 29 September 2015 and then nothing further until
27 February 2016 when Dr Anderson records “Back and leg pain, too much heavy duties at work, chance in direction of company – more heavy lifting needed, job may no longer be suitable for pt…”
Putting the 27 February 2016 attendance within the context of the applicant’s statement, this appears to relate to the subsequent incident described by the applicant when asked to put up a slat wall sometime after the incident with the boulder.
The applicant’s final complaint with respect to moving goods from shipping container is also recorded by Dr Anderson on 22 February 2017.
I accept the evidence of the applicant, particularly where corroborated and placed in context by the records of Astley Medical Centre that:
i)     he had ongoing back complaints pre-existing the 15 July 2015 incident;
ii)     his symptoms following the 15 July 2015 “settled down” within a short period and prior February 2016. The applicant continued to work;
iii)    placing the statement of the worker within the context of the clinical notes, the incident involving slat wall pieces occurred in about February 2016 and was of sufficient seriousness for the applicant to consult a solicitor. The applicant continued to work following the incident, and
iv)    a further incident occurred in February 2017 involving the movement of goods from a shipping container.
In order for the applicant to succeed, the injury on 15 July 2015 does not have to have been the only, main or predominate cause of the need for surgery. There can be more than one cause. However the injury on 15 July 2015 must have materially contributed to the need for surgery.
Having made the above findings with respect to the history of the applicant’s back complaints, when it comes to causation, I am unable to place any significant weight on the opinions of Dr Singh and Dr Chien that the need for the proposed surgery results from the
15 July 2015 incident.
I make this finding with respect to the opinions as to causation of Dr Singh and Dr Chien for the following reasons:
i)     with respect to Dr Singh, it is unclear precisely what background history he took, (which is somewhat understandable given his role as a treating spinal surgeon). He references the initial injury resulting in the L4/5 discectomy as occurring “several years ago” when in fact it occurred in 2005, 17 years prior to his report. He reports simply that ‘work is the main contributing factor to his current condition and the need for surgery’ without any reference to the specific 15 July 2015 injury, the pre-existing complaints and the subsequent incidents. He notes there were subsequent references to work related incidents when the applicant had to do more than light duties;
ii)     the opinion of Dr Singh is limited to a response to the opinion of Dr Smith which is predicated on his view that the applicant was asymptomatic prior to the exacerbation, which is not borne out in the records of Astley Medical Centre;
iii)    similarly, Dr Chien’s history is limited to some six lines noting multiple injuries at work with one requiring the L4/5 discectomy with the use of an implant. This history is not explored further and there is no reference of any discussion with the applicant of the 15 July 2015 injury;
iv)    further, Dr Chien attributes the need for surgery to the injury to the L4/5 with the use of an implant (the 2005 injury) and notes that the implants do not last a long time and that spinal injuries tend to progress and affect adjacent levels even after surgical treatment and where heavy lifting has been discontinued, and
v)     having not recorded any history of the 2015 incident involving the boulder, they are not in a position to express an opinion as to the precise nature of that particular aggravation and whether incident made a material contribution to the need for the proposed surgery.
Given the history of significant injury in 2005 requiring surgery with the implant in 2006, with ongoing complaints including immediately prior to the 2015 incident, Dr Chien’s opinion with respect to the relationship between the 2005 injury and the need for further surgery now is not without merit. It however does not assist the applicant in the present matter.

In contrast, while the history Dr Smith has taken with respect to the timeline of events is imperfect, he has taken a history of the incident involving the boulder and placed it as occurring in about November 2015. This is understandable given the applicant is clearly an imprecise historian with his memory clearly affected by the passage of time.
Dr Smith has reviewed prior historical and more recent radiology reports and treating records of Dr Singh and Dr Gambier. His opinion that the effects of the 2015 incident with the boulder would be short lived and resolve within three months is essentially borne out in the findings I have made having considered the statement evidence of the applicant and the contemporaneous records of Astley Medical Centre. I have no reason not to accept the opinion of Dr Smith with respect to the nature of the 15 July 2015 exacerbation and its self-limiting progression.
I am cognisant that the injury of 15 July 2015 need not be the only or even substantial cause of the need for the proposed surgery. It must however, on the evidence available to me, to have materially contributed to the need for the proposed surgery. No evidence to that affect is before me and I am not persuaded of this.
Weighing the totality of the evidence and in particular the statement evidence of the applicant, contextualised by the contemporaneous records of Astley Medical Centre and the expert opinion of Dr Smith, I am not satisfied the applicant has discharged his onus of proof in establishing that the 15 July 2015 injury materially contributed to the need for surgery.
As such, I find that while the proposed surgery is reasonably necessary treatment for the applicant’s condition, the need for surgery does not result from the injury sustained by the applicant in the course of his employment with the respondent on 15 July 2015.

SUMMARY

For these reasons, there will be an award for the respondent.
As it was not pleaded nor advanced in submissions before me, I have made no findings or determination with respect to whether the need for surgery results from the 2005 injury or the nature of the applicant’s employment with the respondent more generally since that time.

[2024] NSWPIC 202

22 April 2024