Mella v Inghams Enterprises Pty Ltd
[2022] NSWPIC 255
•30 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Mella v Inghams Enterprises Pty Ltd [2022] NSWPIC 255 |
| APPLICANT: | Susana Mella |
| RESPONDENT: | Inghams Enterprises Pty Ltd |
| MEMBER: | 30 May 2022 |
| DATE OF DECISION: | Philip Young |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments and past medical expenses; applicant leading hand alleges 3 episodes of physical injury (aggravation etc of the underlying degenerative lower back) and a consequential psychological condition; Held- injuries and consequential conditions established on the evidence; respondents attack applicant’s credit unsuccessful; award in favour of the applicant for weekly payments and general order section 60 of the Workers Compensation Act 1987 expenses. |
| DETERMINATIONS MADE: | 1. The applicant in the course of her employment with the respondent suffered injury namely aggravation, acceleration, exacerbation or deterioration (aggravation (etc)) of her degenerative lower back condition (disease), specifically by reason of her employment as follows: (a) in April or May of 2014 when she fell off a chair; (b) between approximately July 2014 and August 2017 by reason of the nature and conditions of her employment, and (c) on 15 August 2018 when she slipped on a piece of chicken skin and fell to the ground. 2. In respect of each event of injury, the applicant’s employment was the main contributing factor to the aggravation (etc) of her disease. 3. After 15 August 2018 the applicant developed a consequential secondary psychological condition by reason of her suffering injury to her lower back on 15 August 2018. 4. Since 10 July 2019 the applicant has had no capacity for work which results from her injuries. 5. Award in favour of the applicant in respect of weekly payments of compensation pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act) from 2 March 2020 to date and continuing in the sum of $961.87 per week (being $1,202.34 x 80%). 6. The respondent is directed to serve upon the applicant within 14 days a List of Payments made and the applicant is granted liberty to apply in respect of the above weekly payments award in the event that the first entitlement period of 13 weeks has not expired as at 2 March 2020. 7. The applicant is entitled to a general order in respect of section 60 expenses. |
STATEMENT OF REASONS
BACKGROUND
Susana Mella (the applicant) is a 61-year-old lady who was employed by Inghams Enterprises Pty Ltd (the respondent) as a process worker and later as a leading hand. She alleges that she suffered a disease injury in the course of her employment. This injury is particularised as follows:
(a) a disease contracted in the course of employment namely a degenerative spondylolisthesis due to the nature and conditions of employment up to the first date of incapacity;
(b) discrete aggravations of disease in 2014 after falling off a chair and on 15 August 2018 after slipping on chicken skin, and
(c) the injured worker last worked on or about 24 June 2019 (last date worked and deemed date of injury).[1]
[1] Application at page 7.
The applicant claims weekly compensation from 2 March 2020 to date and continuing with alleged pre-injury average weekly earnings of $1,202.34 per week together with section 60 expenses for past treatment and care totalling $26,194.
The applicant’s claim is in respect of injury to her lower back and a secondary psychological injury. As to the latter alleged condition please see below.
ISSUES
The first issue is whether, and if so to what extent, the applicant suffered injury to her lower back by reason of the circumstances pleaded. Second, there is an issue as to whether the applicant’s employment was the main contributing factor to any such aggravation (etc) of disease. Third, there is an issue concerning the applicant’s capacity for work. Four, the respondent disputes that the applicant is entitled to the medical and treatment expenses referred to in the Application to Resolve a Dispute (Application) because they are not reasonably necessary as a result of injury.[2] Finally, in the event that the applicant does have some incapacity for work, the question arises as to the appropriate award for weekly compensation, if any.
[2] Respondent’s submissions at [34].
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The matter came for conciliation and arbitration hearing by teleconference on 31 March 2022. On that occasion Mr Stockley of counsel instructed by Mr Ramesh, solicitor, appeared for and with the applicant. Mr Macken, solicitor, appeared for the respondent. No insurer representative was present.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
The respondent in its written submissions concedes that during arbitration leave was “apparently given” to allow the applicant to rely on a psychological injury. The respondent indicates that it has not seen any direction indicating that amendment and “the precise nature of the psychological injury alleged has not been identified”.
The arbitration hearing was sound-recorded and it is clear from that sound recording that the amendment to include a consequential psychological conditions was sought, was the subject of oral submissions by both Mr Stockley and Mr Macken and was then the subject of Reasons for Decision given by me. The amendment was clearly granted over Mr Macken’s objection for various reasons including that the respondent’s complaint of not having access to Dr Wang’s records could not be successful in circumstances where the respondent had access to those records almost two weeks before the arbitration date.
The nature of the amendment which was sought and granted was to amend the injury description at paragraph four of the Application to add the following:
“The applicant also claims a consequential psychological condition as a result of the injuries above”.
Since the arbitration hearing the applicant has lodged an Application to Admit Late Documents (AALD) on 6 April 2022 which includes the medical records of St. Andrews Medical Centre. Because these records (including Dr Wang’s notes) were available to the respondent and in fact in the respondent’s possession as early as 18 March 2022 and the records are of assistance to the Commission in its determination of this matter, they are admitted into evidence. More detail concerning the reasons for allowing the amendment is evident from the sound-recording and in particular submissions concerning alleged prejudice to the respondent and questions in that regard raised by this Commission. It is sufficient to say that records concerning Dr Wang’s examination of the applicant are at AALD pages 13, 15 & 16.
The applicant’s pre-injury average weekly earnings were agreed at $1,202.34.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application and attachments lodged 15 December 2021;
(b) Reply and attachments lodged on 24 December 2021 (Reply), and
(c) AALD and attachments lodged on 6 April 2022 by the applicant.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
The parties filed the following written submissions:
(a) by the applicant dated 6 April 2022 and lodged on 7 April 2022, and
(b) by the respondent dated 22 April 2022 and lodged on 22 April 2022.
DISCUSSION AND REASONS
Prior back condition: 1998 and subsequently until 2014
The respondent is correct in noting that Dr Esplago referred the applicant to radiology the subject of a report of 30 October 1998.[3] The difficulty with this observation is that the consultation notes of Dr Esplago do not demonstrate any ongoing problems experienced by the applicant except for the following:
(a) 21 October 1998 lower back pain, left hip and radiation to left knee;[4]
(b) 2 November 1998 osteoarthritis at L5/S1 (x-ray) slight sciatica;[5]
(c) 31 August 2004 back pain on/off one year… tender upper back;[6]
(d) 1 May 2014 had a fall on her bottom c/o back pain. Seen by another doctor – had X-ray L/S coccyx 3.4.2014 no fracture degenerative changes. CT scan if clinically indicated.
[3] Application at page 771.
[4] Application at page 669.
[5] Application at page 669.
[6] Application at page 673.
It is apparent from the above entries that whilst some of the consultations could be a contributing factor to the development of the applicant’s degenerative back condition, the incidence of those consultations are very few and the pathology (whatever it may have been prior to 2014) did not prevent the applicant from performing her usual work and usual life activities generally. These records lead me to the view that the applicant had experienced some lower back pain on isolated occasions between 1998 and 2014 but was able to perform her work without significant complaint to her general practitioner during this period.
The 2014 injury
The applicant in her statement dated 2 October 2020[7] confirms that she had worked for the respondent for the previous 27 years.[8] Her job at the time of injury involved setting up machinery, monitoring timesheets and the workplace, staff training, job allocation and cutting and deboning of chickens on a fast-paced production line at the respondent’s Ingleburn factory.
[7] Application at page 7.
[8] Applicant’s statement at [5].
The applicant in 2014 fell on her back at work whilst sitting on a chair that rolled away from her.[9] Neither the applicant’s nor the respondent’s submissions point to any significant problem whether of a physical or psychological nature experienced by the applicant prior to 2014 (except for consultation attendances which I have earlier discussed). It follows (and is later explained) that between 1993 and 2014 there is no evidence of any significant ongoing pre-existing lower back disability.
[9] Applicant’s statement at [9].
The applicant in her statement says that she “recovered completely from this (2014) injury within three months and returned to normal occupational duties within three months with no ongoing medication due to this (2014) injury”.[10] That concession is one which favours, I believe, the applicant’s credit.
[10] Applicant’s statement at [10].
The 2014 injury although resulting in symptoms for just three months was the subject of a referral for X-ray and a resulting X-ray report of 3 April 2014.[11] This X-ray report, taken when the applicant was aged 53, recorded “minimal degenerative spondylolisthesis of L4 on L5 and of L5 on S1”. The point to be made is that some minimal degenerative changes were present at that time.
[11] Application at page 128.
The respondent does not disagree with the applicant’s account of what happened in 2014 because the respondent’s submissions are devoid of extensive detail concerning the 2014 incident notwithstanding that records relevant to that incident would presumably have been available to the respondent. In those circumstances, it must be accepted that the applicant did recover from the 2014 incident and was able to return to normal duties with no ongoing medication, albeit with radiological evidence of minimal degenerative changes in her lower back.
It is clear that the fall from the chair in 2014 aggravated the applicant’s underlying degenerative back condition to the extent that she was incapacitated she says for a period of three months thereafter. In those circumstances I am satisfied that the fall from the chair in April or May 2014 and the employment which she was then undergoing was the main contributing factor to aggravation (etc) of the applicant’s underlying degenerative back condition at that time.
The 2017 medical treatment
The applicant in her statement of 11 June 2021[12] states that she recalls complaining to Dr Esplago of back pain in 2017 “due to workplace activities”. The applicant goes on to assert that she “believed that the 2014 injury and back pain in 2017 was caused by the nature of (her) employment and aggravated by the work-related injury (she) sustained in 2018”.
[12] Application at page 1 at [8].
There is an entry in Dr Esplago’s notes of 11 August 2017[13] as follows:
“Note back pain persisting radiation to left leg. For CT L/S (indecipherable)”.
[13] Application at page 698.
There is then an entry of 18 August 2017[14] as follows:
[14] Application at page 699.
“CT scan L/S – 16.08.2017
L2/3 mild disc bulging and degenerative changes within the facet joints no significant foraminal stenosis
L3 L4 – disc bulging + no significant (indecipherable) plus foraminal narrowing
L4/5 grade one spondylolysis
(Indecipherable) degenerative change within the facet joints – MRI
L5/ S1 disc bulging within (indecipherable) potential impingement
Degenerative changes noted
Medical certificate – no lifting
Trial of lyrica 75mg (indecipherable)
Stretching (indecipherable)
- Light duties”
Other consultations between that date and 21 August 2018 appear to relate to other conditions until the August 2018 injury is noted on examination by Dr Esplago on 21 August 2018.[15]
[15] Application at page 702.
Clearly, Dr Esplago did see the applicant in 2017 as the applicant has asserted in her statement of 11 June 2021. This is confirmed by Dr Esplago’s report dated 20 September 2021, although the existence of degenerative changes and any reference to the involvement of the applicant’s work is not spelt out in that report.[16]
[16] Application at pages 102-103.
In the absence of any evidence to the contrary I accept the applicant’s statement that her attendance upon Dr Esplago in 2017 complaining of back pain was due to workplace activities in the context of the lower back problems she was experiencing.
The incident of 15 August 2018
The more serious injury alleged by the applicant is said to have occurred on 15 August 2018. She states that on that date she suddenly slipped on a piece of fatty chicken skin left on the floor, causing her to land backwards onto her bottom and experiencing “a sudden onset of pain in my lower back which radiated down to my left leg”.[17]
[17] Applicant’s statement at [11].
Two days later the applicant lodged a workers injury claim form with the respondent and provisional liability was accepted on 7 May 2019 for weekly benefits and medical expenses.[18]
[18] Applicant’s statement at [12].
The applicant consulted Dr Tran who was the respondent’s appointed general practitioner. She was referred to a CT scan of her lower back on 22 August 2018.[19]
[19] Applicant’s statement at [14].
The applicant states that when she consulted with Dr Tran she had symptoms of sciatica to her left leg. Ultimately Dr Tran sent her for an MRI scan which occurred on 21 January 2019.[20]
[20] Applicant’s statement at [15].
The mechanism of injury on 15 August 2018
The respondent referred the applicant to Dr Casikar who saw her on 8 May 2019. The applicant’s claim for her physical injuries was denied on the basis of Dr Casikar’s opinion and her subsequent psychological condition was denied based on a further independent medical opinion obtained by Dr Robert, psychiatrist.
Paragraph 11 of the applicant’s statement is challenged by the respondent because it says that a contemporaneous note contradicts the assertion that the applicant fell to the ground in the incident of 15 August 2018.
The respondent’s assertion is based upon first aid treatment notes dated 16 August 2018 at 11.30am.[21] Those notes were completed by a Mr/Mrs Luangamat and record the following:
[21] Reply at page 13.
“First aid note on Susane Miller incident 15.8.18
- Susan was washing the Multivac area 6.30 pm
- Susan had slipped on small piece of meat on the floor 6.40 pm.
- I did not see the incident but I was in the area.
- I ask Susan if she fall on the ground and she said that she didn’t only her leg twist when she stepped on the meat.
- FEN chen saw the incident and she also said that she did not fall on the floor.
- After the incident I took her offline and into Multivac office 6.40 pm.
- She did not want any first aid while in the Multivac office. So no first aid was given. I also check her left leg for any bruising or swelling, could not see any sign…
- 7.10 pm I checked on her before going home. Again I check her left leg for any bruising swelling but not sign of any. At this time she said that she had pain/ tingling on her leg and ask for icepack. gave her icepack”.
The respondent points to these treatment notes to contradict the assertion made by the applicant that she fell to the ground. Without being critical in any way of the author, the notes are somewhat inelegantly expressed and combined with what I accept is the applicant’s level of proficiency in the English language lead me to the view that other accounts of the history should be considered.
The applicant was examined by a physiotherapist, Mr Vu on 6 September 2018.[22] The history given was “slipped at work on chicken skin landed on lower back painful lower back with (L) radicular pain”. By that time the applicant had been seeing the company doctor[23] who said that she was fit for work for five days per week, eight hours per day.
[22] AALD at page 7.
[23] AALD at page 7.
The applicant next saw Dr Lwin on 10 September 2018 when the work injury of 15 August 2018 was at least mentioned.[24] Then on 11 September 2018 with the physiotherapist Mr Vu the applicant was “not happy at work still limping and painful”.[25]
[24] AALD at page 25.
[25] AALD at page 25.
On 18 September 2018 the applicant again saw Mr Vu with lower back complaints and paraesthesia right leg.[26] On 22 September 2018 Mr Vu recorded “still some radicular pain to left calf”.[27] Further consultations occurred regarding back and left leg pain 25 September 2018, 27 September 2018, 29 September 2018, 4 October 2018, 9 October 2018, 11 October 2018, 16 October 2018, 18 October 2018, 25 October 2018 and many consultations thereafter.[28]
[26] AALD at page 24.
[27] AALD at page 24.
[28] AALD at pages 5-23.
Dr Esplago saw the applicant on 22 August 2018 and he had earlier seen the applicant on 11 August 2017 when she complained of lower back pain with radiation to her left leg.[29] Dr Esplago referred the applicant to a CT scan “showing disc bulging worse bilateral L4/ L5”.[30] He then saw her on 31 August 2018 and 7 September 2018.[31]
[29] Application at page 102.
[30] Application at page 103.
[31] Application at page 103.
Dr Tran saw the applicant on 17 August 2018. The history given is somewhat confusing in that he records that the applicant “tried to stop her fall with her hands” yet in the same paragraph states “she did not fell [sic-fall] on her bottom”.[32] I have difficulty understanding how the applicant’s hands could be mentioned if they did not suffer some physical impact, falling backwards, without the applicant’s bottom or back being impacted.
[32] Application at page 121.
The applicant has provided a second statement on 11 June 2021. In it the applicant details the onset of her psychological symptoms and confirms that early after 15 August 2018 she had concentration issues, she had difficulty coping with tasks at work and was distressed at fellow workers who were seemingly dismissive of her pain.[33] The applicant makes mention of concentration problems, sleep difficulties, anxiety and depression.[34] She experienced frequent suicidal thoughts, a reduction in motivation, paranoia and confusion.[35] She had moments where she was hearing people at work talking about her.[36]
[33] Application at page 2 at [23]-[24].
[34] Application at page 2 at [27].
[35] Application at page 3.
[36] Application at page 3 at [40].
The applicant attended Dr Khan for her psychological symptoms as well as Ms Walker, psychologist.[37]
[37] Application at page 3 at [43]-[43].
The evidence of the applicant falling to the ground in my view must be accepted as having occurred in fact although the actual records were in some respects deplete for the reasons I have mentioned.
The respondent’s medical evidence
The respondent arranged for the applicant to be examined by Dr Casikar, neurosurgeon and a report of 13 May 2019 is to hand.[38] Dr Casikar took a history that the applicant on 15 August 2018 twisted and fell to the ground[39] and diagnosed “L4/L5 spondylolisthesis workplace aggravation” and confirmed that this had produced “a canal stenosis due to the anterior migration of the vertebral body” which explained her initial sciatic symptoms.[40] He also concluded that the applicant’s employment “is a substantial contributing factor to her present complaint”.
[38] Reply at page 7.
[39] Reply at page 9.
[40] Reply at page 10.
Dr Casikar again saw the applicant on 26 February 2020 and his report of 27 February 2020 is in evidence.[41] On this occasion Dr Casikar diagnosed “chronic pain-focused personality”. Dr Casikar then makes the claim that the applicant “has not suffered an aggravation to a pre-existing condition”[42] but needs to see a psychologist for her pain-focused issues.[43]
[41] Reply at page 28.
[42] Reply at page 30.
[43] Reply at page 31.
Dr Casikar appears to retreat somewhat from his earlier opinion that the applicant did suffer a workplace aggravation. For this reason and also because Dr Casikar’s opinions pre-date surgery performed by Dr Nair in August 2020, his opinion is inconsistent and unsatisfactory.
The applicant’s medical evidence
The applicant’s spinal operation is the subject of some reports from spinal surgeon, Dr Nair. The operation report confirms that the “lateral border of the nerve roots both exiting and traversing was visualised and protected.”[44] Sequestrectomy was performed in relation to her “nucleous polposus”[45] so that it is clear that pathology was observed by Dr Nair as present during the operative procedure.
[44] Application at page 152.
[45] Application at page 152.
Contrary to the respondent’s submission,[46] Dr Nair did comment on causation in the sense that he referred to the applicant having slipped at work in 2018 in the context of her developing “significant lower back and lower extremity discomfort”.[47] Further, Dr Abraszko in a report to Dr Tran of 3 April 2019 also takes a history of the applicant developing back pain radiating down to her left leg when she slipped on a chicken skin on 15 August 2018.[48] Additionally, Dr Manohar in his report to Dr Abraszko on 8 July 2019 refers to the applicant slipping on 15 August 2018 and developing in the following week lower back pain, hip pain and leg pain.[49] Dr Manohar comments that “it is conceivable that the annular tears are leaking leukotrienes and irritating the posterior longitudinal ligaments and the nerve roots” which happens to coincide (I believe) with Dr Nair’s findings on operative intervention.
[46] Respondent’s written submissions at [12].
[47] Application at page 517.
[48] Application at page 592.
[49] Application at page 606.
Dr Darwish saw the applicant at the request of her solicitors on 23 June 2020 and his medical report of the same date is in evidence. He also took a history of two work-related injuries and that after 15 August 2018 the applicant developed lower back pain and severe left sciatica.[50] Dr Darwish confirms that the applicant had “grade 1 L4/ L5 spondylosis and compression of both L5 nerve roots” together with “L5/ S1 disc dehydration and annular tear”.[51] Again, the reference to annular tear is consistent with the operation report.
[50] Application at page 67.
[51] Application at page 68.
Dr Darwish has provided a supplementary report dated 3 May 2021. That report deals with capacity and he concludes that after 10 July 2019 the applicant had no capacity to work.[52] In terms of causation he confirms that the applicant’s condition “is most likely a degenerative process aggravated by the nature of her employment over many years” and further “that the work-related injury in 2014 and 2018 resulted in of [sic] aggravation of a pre-existing condition”.[53] The starting point for no capacity is 10 July 2019.
[52] Application at page 85.
[53] Application at page 86.
The alleged secondary psychological condition
The applicant relies upon the opinions of Dr Allan, psychiatrist and Ms Walker, psychologist. In his report of 14 October 2020[54] Dr Allan reviews the evidence of the applicant’s physical injury and notes that the applicant denied any past psychological health issues.[55] He took a history of the applicant’s various disabilities consistent with her second statement and diagnosed a major depressive disorder with psychotic features which have resulted from her workplace physical injury.[56] Dr Allan confirms that this is a secondary “psychological injury” to which her employment was the substantial contributing factor.[57]
[54] Application at page 72.
[55] Application at page 75.
[56] Application at page 79.
[57] Application at page 81.
Ms Walker has provided a report dated 30 April 2020. She confirms that she first saw the applicant on 2 May 2019 and she also diagnosed major depressive disorder in the context of the applicant’s chronic pain resulting from workplace injury on 15 August 2018.[58]
[58] Application at page 90.
Dr Allan’s opinion is that as a result of the applicant’s psychological symptoms she has no work capacity.[59]
[59] Application at page 81.
Dr Roberts saw the applicant at the request of the respondent and his report of 5 May 2020 is in evidence.[60]
[60] Reply at page 33.
To some extent Dr Roberts’ opinion is influenced by matters assumed because of a “cover letter of 28 April 2020” the subject of the referral.[61] Dr Roberts was informed in that cover letter of a number of relevant matters upon which he must have, as a matter of common sense, relied. These include first the “considerable amount of effort” made by the respondent to return the applicant to suitable employment; second that since June 2019 the applicant has ceased making herself available for any work by reason of a personal illness; third that Dr Casikar believes that the applicant had recovered from her work injury subject to pain-focused issues.[62] Dr Roberts notes the applicant’s description of pain distribution and believes it not possible that a spinal injury could produce that neurology.[63] It is unclear whether Dr Roberts had access to the reports of Ms Walker at the time of his initial assessment.
[61] Reply at page 33.
[62] Reply at page 33.
[63] Reply at page 34.
The Commission does not have the benefit of the referral letter sent to Dr Roberts. But regardless, it is to be seen that some of the factual matters put to him are not correct. The assumptions he was asked to accept about the respondent’s efforts to rehabilitate the applicant and the applicant’s absence from employment due to unrelated personal illness are just two such matters. Dr Roberts’ opinion must be considered in that context, namely that it is necessarily predicated on matters in respect of which there is insufficient (or no) evidence before this Commission.
Additionally, Dr Roberts report[64] appears to concentrate upon physiological symptoms of anxiety. He offers an “addendum”[65] with generic reference to the conditions of anxiety disorders including panic disorder, post-traumatic stress disorder, generalised anxiety disorder and acute stress disorder. He concludes in this regard:[66]
“Symptomatology in regard to concentration and on reasonable psychiatric grounds in the context of symptomatology which Mrs Mella attributes to pain, are the result of a psychosis and inappropriate attribution of symptomatology to circumstances arising as a result of her psychosis”.
[64] Reply at page 37.
[65] Reply at pages 37-38.
[66] Reply at pages 39-40.
Dr Roberts notes that the pain distribution described by Mrs Mella “extends far beyond the anatomical distribution and impact of any lumbo sacral lesion[67] but he comments[68] that the applicant’s perception of possibly inappropriate treatment that she received “can be psychiatrically understood in the context of her paranoid ideation”.[69]
[67] Reply at page 40.
[68] Reply at page 41.
[69] Reply at page 41.
Dr Roberts again refers to the applicant’s “perception of disability”,[70] comments on the applicant’s paranoia and perceptions[71] and then ultimately diagnoses paranoid schizophrenic illness.[72] He refers to this many times as being a pain “perception” but nonetheless concludes that the psychosis condition “can neither be caused or aggravated by work”.[73]
[70] Reply at page 42.
[71] Reply at page 42.
[72] Reply at page 44.
[73] Reply at page 44.
What is lacking in his analysis, however, is any explanation concerning why this psychological condition occurred not before, but after development of the physical injuries the applicant suffered in her employment. The closest he comes to in this regard is to suggest that this disease “has an onset for reasons that are not explicable”[74] and he refers to “a delusional belief system” as a result of her perceptions.[75]
[74] Reply at page 45.
[75] Reply at page 46.
Dr Roberts makes no mention of the fact that the applicant’s psychotic symptoms which he found arose only after the applicant’s physical injury on 15 August 2018. Dr Allan records psychotic symptoms as having developed since the accident in 2018.[76] In the absence of a pre-existing history of psychotic symptoms and in the presence of a developing and worsening history of physical symptoms which ultimately led to surgery in 2020, the development of the applicant’s psychological condition must, in my view, result from her concerns about her physical injuries after August 2018. There is nothing in the consultation records which suggest otherwise and therefore the opinion of Dr Allan that the development of psychological symptoms was caused or materially contributed to by the incident of 15 August 2018 must be accepted. To find otherwise would be to ignore the applicant’s consultation history.
[76] Application at page 78.
Conclusion on the issue of injury
Having regard to the evidence noted above, in particular the applicant’s statements and the overwhelming majority of treating medical opinion, I am satisfied that the applicant suffered injury in the course of her employment as follows:
(a) aggravation, acceleration, exacerbation or deterioration of degenerative spondylolisthesis as a result of an incident when the applicant fell off a chair and confirmed by an X-ray report of 3 April 2014. The applicant recovered from this injury within three months and was not required to take any medication thereafter;
(b) the nature and conditions of the applicant’s employment up until 11 August 2017 constitute aggravation, acceleration, exacerbation and deterioration of the applicant’s degenerative spondylolistheses culminating in medical treatment by Dr Esplago and radiological investigations consequent upon the applicant’s work activities and revealing further aggravation of the applicant’s degenerative back condition;
(c) further aggravation (etc) of degenerative spondylolisthesis due to the nature and conditions of the applicant’s employment between August 2017 and 15 August 2018, and
(d) a significant injury on 15 August 2018 being a further discrete aggravation of the applicant’s underlying degenerative disease when she slipped on chicken skin and fell to the ground.
Main contributing factor
As mentioned earlier in these Reasons, the concept of “main contributing factor” as it applies to section 4 (b) (ii) requires only that the employment was the main contributing factor to the aggravation (etc) of the disease, not that it was the main or a substantial contributing factor to the injury or the disease itself. For that reason, the respondent’s submission[77] is rejected. But the following further observations in the context of the pleaded injuries are offered:
[77] Respondent’s written submissions at [11].
2014 incident
The fall from the chair in 2014 aggravated the applicant’s underlying degenerative back condition to the extent that she was incapacitated she says for a period of three months thereafter. In those circumstances I am satisfied that the fall from the chair in April or May 2014 and the employment which she was then undergoing was the main contributing factor to aggravation (etc) of the applicant’s underlying degenerative back condition.
2014 until August 2017
The next period of employment is from when the applicant returned from her work following the 2014 incident until August 2017 when she saw Dr Esplago. Dr Esplago’s notes corroborate that the applicant was having back problems at that time. The applicant’s evidence is that she was experiencing lower back symptoms because of her work. The applicant saw Dr Esplago on a number of occasions between 2014 and 2017 and the relevant entries including the following:
(a) 11 August 2015 still having pain left lower back and radiation to buttock (indecipherable) after she slip at work;
(b) 4 November 2016 back pain upper (indecipherable), and
(c) 11 August 2017 low back pain (as previously discussed).
It will be seen from the above consultation notes that the applicant was complaining of some back pain sporadically through until 11 August 2017 when she says she saw Dr Esplago and related this pain to her work activities.
The nature of the work activities by the applicant must be accepted in the absence of any alternative evidence offered by the respondent. A review of the entirety of Dr Esplago’s consultation notes indicates that the applicant is not a person who regularly complains about her medical disabilities and it is entirely understandable in my view that the applicant wished to continue to work. I accept that the nature and conditions of the applicant’s employment between her return to work after the April/ May 2014 incident until the consultation with Dr Esplago on 11 August 2017 was the main contributing factor to her lower back condition.
11 August 2017 to 15 August 2018
For the period from 11 August 2017 to 15 August 2018 there are limited consultations with Dr Esplago and they relate to matters such as pelvic ultrasound and sore wrist until the incident which occurred on 15 August 2018. In the absence of contemporaneous medical evidence detailing any aggravation (etc) of the applicant’s degenerative back condition I am unable to accept that her employment was the main contributing factor to any aggravation during that period.
The 15 August 2018 incident
The incident of 15 August 2018 was a significant incident and in my view was a significant aggravation (etc) of the applicant’s degenerative lower back condition. This is because the left sided sciatica became prominent immediately following this incident and so too did the applicant’s psychological concerns develop because of the applicant’s physical injuries and her concerns as to how these affected her especially in terms of the reaction of her fellow workers.
Clearly the incident of 15 August 2018 was the main contributing factor the aggravation (etc) of the applicant’s condition and this occurred in circumstances to which the applicant would not have been exposed had she not been at work.
Capacity
The applicant was involved in some disciplinary action in April and May of 2019. The applicant had been certified fit for pre-injury work on 6 November 2018.[78] The decision by the insurer to deny liability in respect of the physical injuries claimed is the subject of a letter dated 2 March 2020.[79] The reasons given include a disputation of liability based upon the applicant’s employment being not considered “to be a substantial contributing factor to your injury and you have recovered from the injury” and “Based on medical opinion of Dr Casikar you are no longer suffering from a work-related injury”.[80] That, however, is not the correct test in terms of section 4 (b) (ii) because the employment must be the main contributing factor to the aggravation (etc) and this enquiry occurs only after consideration is given to the occurrence of injury.
[78] Application at page 244.
[79] Application at page 34.
[80] Application at page 35.
The section 78 notice concerning psychological injury is by letter of 19 May 2020.[81] The matters in dispute identified in that notice incorrectly relate to sections 4, 9A, 11A, 15 and 16 of the 1987 Act. This is because the Statement of Reasons address the issue[82] by reference to the applicant “no longer suffering from a work-related injury”[83] and applying a test for consequential condition which does not require the satisfaction of the sections just mentioned.
[81] Application at page 40.
[82] Application at pages 41-42.
[83] Application at page 42 at [d].
There is physical injury in terms contemplated by section 4 of the 1987 Act. That physical injury can be established by either personal injury simpliciter, by the occurrence of disease or the aggravation (etc) of a pre-existing disease. If the injury is classified as a section 4 (a) injury then the applicant must establish the qualification required by section 9A. If the injury is a section 4 (b) injury the applicant must establish that employment was the main contributing factor to either the development of the disease or the aggravation (etc) of the disease. But once that physical injury is established, the question as to whether any consequential conditions have occurred depends not on section 9A nor section 4(b) but rather on questions of causation concerned with “results from” contemplated by cases such Bates,[84] where the test is causation is in the sense of caused or materially contributed to by the established physical injury.
[84] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452
For that reason, an examination of the respondent’s section 78 notices reveals that many of the proper tests in terms of causation have not been applied. The review notice of 11 August 2020,[85] to the extent that it concerns secondary psychological injury, repeats this error.
[85] Application at page 53.
The applicant’s capacity for work
The respondent has submitted that the medical records attached to the Application contradict the applicant’s claim that she had no problems with her back prior to the incident on 15 August 2018. There appears a radiology report of 16 August 2017 addressed to Dr Esplago being a CT of the lumbosacral spine demonstrating disc bulging and degenerative change as well as spondylolisthesis secondary to degenerative change. The respondent says that the provision by the applicant of a second statement dated 11 June 2021 has been provided to explain this apparent inconsistency. In this statement the applicant recalls consulting Dr Esplago in 2017 but claims that this was because of the 2014 injury and the nature of her employment up until 2017.[86] The respondent submits that the inconsistency in the statements reflects upon the applicant’s credit.
[86] Application at page 1.
In her statement of 11 June 2021 the applicant claims that she can “only speak and comprehend reasonable but not perfect English”.[87] The applicant’s primary language is Spanish. She was born in the Philippines. Dr Allan has made a comment regarding English communication.[88] On 5 August 2019 Dr Tran recorded that the applicant failed to consult Ms Walker, psychologist, because she thought that Dr Manohar was the psychologist when in fact he was a pain management specialist.[89] The point to be made is that it is not necessarily the case that the applicant’s credit is at issue when the applicant has English as a second language and in circumstances where (with respect to Mr/ Ms Luangamat and his/her choice of language in the first aid history) the first aid history does not indicate a significant command of English. I am unable to accept in those circumstances and given the consistency of the history given by the applicant to various doctors that the respondent’s allegations concerning credit are correct.
[87] Application at page 6 at [74].
[88] Application at page 79.
[89] Applicant’s submissions at page 1 at [3].
FINDINGS AND ORDERS
The applicant in the course of her employment with the respondent suffered injury namely aggravation (etc) of her degenerative lower back condition (disease), specifically by reason of her employment as follows:
(d) in April or May of 2014 when she fell off a chair;
(e) between approximately July 2014 and August 2017 by reason of the nature and conditions of her employment, and
(f) on 15 August 2018 when she slipped on a piece of chicken skin and fell to the ground.
In respect of each event of injury, the applicant’s employment was the main contributing factor to the aggravation (etc) of her disease.
After 15 August 2018 the applicant developed a consequential secondary psychological condition by reason of her suffering injury to her lower back on 15 August 2018.
Since 10 July 2019 the applicant has had no capacity for work which results from her injuries.
Award in favour of the applicant in respect of weekly payments of compensation pursuant to section 37 of the 1987 Act from 2 March 2020 to date and continuing in the sum of $961.87 per week (being $1,202.34 x 80%).
The respondent is directed to serve upon the applicant within 14 days a List of Payments made and the applicant is granted liberty to apply in respect of the above weekly payments award in the event that the first entitlement period of 13 weeks has not expired as at 2 March 2020.
The applicant is entitled to a general order in respect of section 60 expenses.
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