Micallef v Mathew & Son Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Micallef v Mathew & Son Pty Ltd [2023] NSWPIC 669
APPLICANT:	James Micallef
RESPONDENT:	Mathew & Son Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	12 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted injury to lumbar spine; disputed claim for injury to right shoulder; applicant accepted that unless the claim in respect of the right shoulder succeeds the whole claim for lump sum compensation must fail; absence of contemporary complaints of the right shoulder for approximately nine months following the injury despite repeated attendances on his general practitioners and specialists; no explanation by the applicant; finding that the applicant had not discharged his onus of establishing that he suffered injury to his right shoulder; applicant also claimed cost of physiotherapy or exercise physiology in relation to his lumbar spine; no dispute that he continued to suffer pain in his lumbar spine; applicant had undertaken most forms of conservative treatment; Held – weight of the evidence supported the conclusion that the treatment is reasonably necessary as a result of his accepted injury.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in the applicant’s claim for injury to his right shoulder arising out of or in the course of his employment on 12 March 2020 (deemed). 2. The respondent to pay the reasonably necessary costs of physiotherapy in relation to the applicant’s accepted injury to his lumbar spine on 12 March 2020 (deemed).

STATEMENT OF REASONS

BACKGROUND

The applicant, James Micallef, claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for injury to his lumbar spine and right shoulder arising out of or in the course of his employment with the respondent, Mathew & Son Pty Ltd, deemed to have occurred on 12 March 2020.
The respondent accepts liability for injury to Mr Micallef’s lumbar spine but disputes his claim in relation to injury to his right shoulder.
Mr Micallef relies on an assessment by orthopaedic surgeon, Dr Medhat Guirgis, that he injured his lumbar spine and right shoulder on 12 March 2020. Dr Guirgis assessed Mr Micallef as having 13% whole person impairment comprising 7% whole person impairment of the lumbar spine and 7% whole person impairment of the right upper extremity.
Mr Micallef agrees that, if his claim for injury to the right shoulder does not succeed, there is no ground on which to refer the lumbar spine injury to a Medical Assessor for assessment of whole person impairment, and his claim for lump sum compensation must fail.
Mr Micallef also claims the cost of treatment pursuant to s 60 of the 1987 Act, particularised as physiotherapy recommended by Independent Medical Examiner, Dr Peter Bentivoglio, and treating neurosurgeon, Dr Peter Khong.

ISSUES FOR DETERMINATION

The parties agree that the issues remaining in dispute are:
(a)    whether Mr Micallef suffered injury to his right shoulder on 12 March 2020 (deemed);
(b)    if so, whether he is entitled to lump sum compensation, and
(c)    whether he is entitled to s 60 expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a telephone conference on 24 October 2023, the respondent was granted leave to lodge an Application to Admit Late Documents (AALD) attaching a dispute notice issued on 20 October 2023 in relation to Mr Micallef’s claim for injury to the right shoulder. There was no objection on behalf of Mr Micallef to the dispute notice being admitted.
Parties attended a conciliation conference and arbitration hearing on 22 November 2023. Mr Micallef was represented by Mr Bill Carney of counsel instructed by Ms Premilla Dulichan. The respondent was represented by Mr Allen Parker of counsel instructed by Mr Jesse Webb. Parties were unable to reach agreement and the matter proceeded to hearing.
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

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 (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    AALD and attached documents lodged by the respondent on 25 October 2023.

Oral evidence

There was no application to adduce oral evidence or cross-examination any witness.

Mr Micallef’s evidence

Mr Micallef has provided a statement of evidence dated 3 July 2023.[1] He outlines his employment history as a bricklayer and labourer for various employers for most of the time since 2009 and, from some time in 2019, for the respondent.
[1] ARD page 1.
Mr Micallef states that, on 12 March 2020, he was required to lift bricks from a wheelbarrow into a bucket that was hauled up by means of a pulley to an upper floor. Weather on the day was wet and the ground was uneven with a lot of slush. By around lunch time, he felt an onset of pain in his back and right shoulder. He thought it would be better after lunch but he was unable to lift a shovel. He reported this to his manager and was sent home.
Mr Micallef states that he attended on his general practitioner, Dr Prasad Godakandage, the following day. He obtained scans and medications, and Dr Godakandage referred him to neurosurgeon, Dr Anil Nair, who conducted investigations of his lumbar spine and referred him to pain specialist, Dr Rosa Hou.
On 8 September 2020, Mr Micallef had a right sacroiliac joint injection. He was treated with exercise physiology and home exercises. On 6 October 2020, he had a further sacroiliac joint injection. He states that he has undergone a number of conservative treatments such as corticosteroid injections, radiofrequency ablation, physical therapy, exercise physiology and hydrotherapy.
Mr Micallef states that he consulted neurosurgeon, Dr Peter Khong, on 31 August 2021. Dr Khong said he had exhausted conservative treatment but he would not recommend surgical intervention because of his age (Mr Micallef was 29 at the time).
Mr Micallef states that he has not worked since 12 March 2020. His describes his ongoing disabilities. He states that he still experiences pain in his lower back, and some stiffness, which is worse on some days than others. He also experiences clicking and heaviness of his right shoulder with increased pain and stiffness in colder and wet weather. He takes cannabis three times a week and Panadol four to six times a day for the pain.

General practitioners’ records: Our Medical Home Marsden Park

Clinical notes from Our Medical Home Marsden Park dating from 14 February 2020 to 5 August 2022 are in evidence.[2]
[2] ARD page 107.
On 12 March 2020, Dr Godakandage noted (reproduced as written):
“Acue on chronic lumbar back pain started after lifintg something at work yesterday and more pain today tafetrggin to work few months of acurte recurrent back pains limitting work and radiating toarsd Rigth buttoack”
Dr Godakandage noted on examination: “Acutely tender Upper Lumbar vertebrae”. He noted “back pain radiating to buttock” and requested a CT lumbar spine. He certified Mr Micallef as having no current capacity from 12 March 2020 to 2 April 2020. The certificate described his diagnosis as “Discopathy in Lumbar spine and possible Annular fissure in Lumpbar [sic] spine” and noted treatment as “Physiotherapist and Spinal Surgeon”.[3]
[3] ARD page 120.
In detailed notes on 13 March 2020, Dr Godakandage noted “chronic back pain related to Discopathy” and the pain was not better. He noted various forms of exercise and pain relief and that Dr Nair was happy to see Mr Micallef.
On 1 April 2020, Mr Micallef was referred for an MRI of his lumbosacral spine. On 3 December 2020, he had a CT lumbosacral spine.[4]
[4] ARD page 124.
The records show that Mr Micallef attended on Dr Godakandage and other doctors at Our Medical Home Marsden Park on 78 occasions between 19 March 2020 and 20 December 2020, and nine occasions between then and 5 August 2022. Some consultations were for unrelated matters but, overwhelmingly, they were for complaints of persistent lower back pain.
There is no reference in the clinical records to complaints of symptoms in the right shoulder or any investigation of Mr Micallef’s right shoulder.
The records from Our Medical Home Marsden Park before the Commission appear to include only some of the WorkCover certificates issued by Dr Godakandage. His notes on 19 March 2020 refer to an initial Certificate of Capacity but there does not appear to be a copy in the documents. There are further references to Certificates of Capacity being updated or provided throughout 2020 and in January 2021.[5] Only four are included in the documents. They are dated 30 April 2020, 23 October 2020, 2 November 2020 and 16 November 2020.
[5] ARD page 187.
Each of the certificates describes the diagnosis of Mr Micallef’s injury and the manner in which it occurred in identical terms. The diagnosis of injury is described as “Discopathy in lumbar spine and possible Annular fissure in Lumpbar [sic] spine”. As to how it was related to his work, each describes “acute pain while lifting bricks at work”.[6]
[6] ARD page 429.
The records indicate that Mr Micallef last attended on the practice in relation to his back pain on 18 March 2021. He attended again in December 2021 and in April 2022 for an unrelated matter.

Dr Nair’s reports

Dr Nair saw Mr Micallef on 31 March 2020. He reported that Mr Micallef’s “entrance complaint is lower back and right lower extremity pain”.[7] Mr Micallef described “pain in the lower back, radiating into the right lower extremity.” Dr Nair undertook an examination and said he would review Mr Micallef again after an MRI.
[7] ARD page 82.
Dr Nair saw Mr Micallef again on 17 April 2020 by telehealth.[8] He said Mr Micallef “continues to be troubled by his lower back in lower extremity symptoms”. He noted the MRI showed disc injuries in the lumbar spine. On 28 April 2020, he saw Mr Micallef in person and noted that he “continues to be troubled by his discogenic lower back pain”.[9]
[8] ARD page 81.
[9] ARD page 80.
On 7 July 2020, Dr Nair reported that Mr Micallef’s “lower extremity symptoms are persistent”. He had not been approved for radiofrequency ablation but was undergoing physiotherapy “which is appropriate however not mutually exclusive”.
On 1 September 2020, Dr Nair said Mr Micallef “continues to be troubled by lower back and lower extremity problems”.[10] He said physiotherapy had not helped and the next “gradation of treatment” was corticosteroid injections and radiofrequency ablation.
[10] ARD page 76.
On 13 October 2020, Dr Nair noted that Mr Micallef had undergone corticosteroid injections and repeat MRIs showing a L5/S1 disc herniation. He said he had advised Mr Micallef to “continue with physical therapy, exercise physiology and hydrotherapy.” [11]
[11] ARD page75.
There is no reference in Dr Nair’s reports to a complaint of right shoulder pain.

Dr Hou’s reports

Dr Rosa Hou, specialist in pain medicine, first saw Mr Micallef on 16 June 2020 and reported to Dr Godakandage on the same date.[12] She took a history from Mr Micallef that, on
[12] ARD page 47.
[13] It appears this is a mistake and should read 12 March 2020.
13[13] March 2020, he was at work as a bricklayer “when he twisted his back. It gradually worsened over the next few days, until he was unable to lie down to sleep.”
Dr Hou reported that Mr Micallef “described [pain] mainly over the right lower back, which radiates up to his right shoulder blade, and down the right leg to posterior right by ending at the knee.” She noted that he had a CT lumbosacral spine in March 2020 and an MRI lumbar spine in April 2020. Under “Impression” she stated:
“chronic low back, pain, exacerbated by work injury, likely due to right lumbar facet arthropathy and possibly right sacroiliac joint arthropathy.”
On 9 September 2020, Dr Hou reported that Mr Micallef had “essentially no low back pain” until he walked. He complained of “pain between his shoulder blades when he extends his right leg.” She recorded her impression as “chronic low back pain exacerbated by work injury, likely due to right lumbar facet arthropathy and possible right sacroiliac joint arthropathy.” [14]
[14] ARD page 55.
Dr Hou suggested a treatment plan comprising painkilling medication, lumbar spine injection, use of a TENS machine, a roller for upper back stretches, and consideration of medicinal cannabis.
Further reports from Dr Hou dated 15 July 2020, 12 August 2020, and 13 October 2020 are in evidence.[15] On 3 November 2020, she performed a right sacroiliac injection.[16]
[15] ARD pages 50, 52, 54, 55, 57.
[16] This does not accord with the dates in Mr Micallef’s statement of evidence but nothing turns on this.
Other than the reference in Dr Hou’s first report to pain radiating up from Mr Micallef’s lower back to his right shoulder blade, and the reference to pain between his shoulder blades on extending his right leg, there is no reference in her reports to the right shoulder. Even when she noted those symptoms, she recorded her “impression” in the same terms, as “chronic low back pain exacerbated by work injury, likely due to right lumbar facet arthropathy and possible right sacroiliac joint arthropathy.”

Physiotherapy records and reports

Physiotherapist, John Kang at Our Medical Home Marsden Park, first saw Mr Micallef on 29 June 2020. He recorded that Mr Micallef was using a pulley system when he “felt gradual pain in lower back that got worse throughout the day”. He went back to work the next day, but could not continue due to “constant 9/10 VAS pain in lower back” and “shooting pain down right posterior leg up to knee.” Mr Kang recorded areas of pain as “lumbar spine -- central and bilateral - left more than right radiculopathy”. [17]
[17] ARD page 130.
Mr Kang saw Mr Micallef next on 4 July 2020 and reported to Dr Godakandage. His notes show “persistent low back pain”. His report indicates that Mr Micallef was referred “for physiotherapy for his lumbar spine work related injury.” Mr Kang recorded his impression as “lumbar spine musculo-ligamentous strains with possible discogenic/neurogenic pathologies.” He recommended continuing physiotherapy and exercises.[18]
[18] ARD page 442.
On 11 July 2020, Mr Kang noted “slow improvement, low back pain” and that Mr Micallef complained of “right side thoracic pain today”.[19]
[19] ARD page 134.
Clinical records show Mr Micallef saw Mr Kang 47 times between July 2020 and 17 December 2020. There is no reference to any complaint in relation to the right shoulder.

Dr Vote’s report

Dr James Vote, orthopaedic surgeon, saw Mr Micallef for assessment on 23 July 2020 at the request of the respondent. On 24 July 2020 he reported that Mr Micallef presented. “with an injury to his back.” Mr Micallef described how he was working as a bricklayer on 12 March 2020, and he “progressively developed pain in his back and down his right leg”. He “also developed some tingling in the right foot.” When he saw Dr Vote, he was “still having problems in terms of restricted back movement and pain down his right leg”.[20]
[20] Reply page 26.
Dr Vote diagnosed aggravation of degenerative disc disease of the lower two lumbar levels which appeared to have occurred on 12 March 2020. There is no reference in his report to a complaint of symptoms in the right shoulder.
As to treatment, Dr Vote said Mr Micallef was “currently finishing physiotherapy but said there has not been a marked improvement in his situation.” Dr Vote considered the treatment proposed by Dr Nair as "somewhat premature” because he would normally expect the condition to settle in time with rest and quiet activity, and there was no evidence of new pathology, such as a disc rupture, to explain Mr Micallef’s symptoms. He recommended a further month to six weeks of quiet, physical treatment and rest, after which, if there was no improvement, the treatment proposed by Dr Nair would be reasonable.

General practitioners’ records: Workers Doctors

Clinical records from Workers Doctors show that Mr Micallef first attended there on 21 January 2021.[21] Although it appears he continued to attend on the practice until at least mid-2022, his statement of evidence makes no reference to this. The reason is not clear, particularly given that the Workers Doctors notes and reports tend to support his claim in relation to the right shoulder, at least on their face. It is not clear what prompted him to consult Workers Doctors or why he continued to attend on both practices for several months.
[21] Some documents refer to the date as 21 December 2022 but nothing really turns on this.
Copies of 18 WorkCover Certificates issued by Workers Doctors between 21 January 2021 and 24 November 2022 are in evidence. Each describes the diagnosis in identical terms as:
“R) shoulder strain; Lumbar spine radiculopathy, L3/4, L4/5 mild foraminal stenosis, L4/5 annular tear (MRI on 1 April 2020); chronic pain with adjustment disorder.”
Each describes the injury as:
“Shoulder and lower back injury after pushing a heavy wheelbarrow at work.”
On 30 January 2021, Mr Micallef had an MRI of his right shoulder.[22] The requesting doctor was Dr Eric Lim. The report refers to clinical notes showing “Right shoulder pain, restricted movement”. The report conclusion was:
“No definite internal derangement demonstrated. There is degenerative change in the AC joint.”
[22] ARD page 70.
On 9 May 2022, Dr Calvache-Rubio reported that Mr Micallef initially presented on 21 January 2021, following “shoulder/back injury(ies)” on 12 March 2020.[23]
[23] ARD page 279.
As to how the injury (or injuries) occurred, Dr Calvache-Rubio stated:
“He was pushing a wheelbarrow when he misplaced his step and felt immediate lower back pain. He continued working that day, and tried to work the next day, but was unable to cope with the pain. His job role involves repetitive heavy lifting and pushing.”
Dr Calvache-Rubio’s description of how the injury occurred varies somewhat from Mr Micallef’s statement of evidence and from the histories taken by the other doctors and it does not refer to the onset of shoulder pain.
Dr Calvache-Rubio reported that Mr Micallef “experiences shoulder and back pain which impairs his physical capacity for work.”

Dr Khong’s report

Dr Peter Khong, neurosurgeon, reported on 19 May 2022 that Mr Micallef had been working as a bricklayer for 10 years. He sustained injury on 12 March 2020 when he was pushing a heavy wheelbarrow through mud and taking bricks and mortar up with a pulley. When he came back from lunch “he couldn’t bend over due to severe back pain.”[24]
[24] ARD page 60.
Dr Khong reported that he saw Mr Micallef on 31 August 2021. He “continued to complain of focal right sided lower back pain around the region of the sacroiliac joint.” He sometimes had “some numbness in the right buttock [and] focal bilateral knee pain.” Dr Khong diagnosed focal right sided back pain, possibly due to degenerative disc disease at L5/S1 or sacroiliac joint dysfunction. He noted than an MRI also showed a subtle annular tear at L4/5.
There is no reference in Dr Khong’s report to a complaint of symptoms in the right shoulder.
With respect to treatment, Dr Khong noted that Mr Micallef had had injections, physiotherapy, hydrotherapy, medications and TENS. He said he had previously recommended a right-sided injection and possibly a radiofrequency ablation; depending on where the pain was coming from, he might require a fusion.
Dr Khong said Mr Micallef should have ongoing physiotherapy and hydrotherapy if he derived benefit from it.

Dr Bentivoglio’s report

Neurosurgeon, Dr Peter Bentivoglio, saw Mr Micallef for assessment on 24 May 2022 and reported on 30 May 2022. He took a history from Mr Micallef of an injury on 12 March 2020 “when he developed lower back pain and right shoulder pain after a lot of repetitive bending and lifting of bricks.” Dr Bentivoglio noted Mr Micallef’s attendance on various doctors and his treatment. [25]
[25] ARD page 28.
Under “Present Condition” Dr Bentivoglio noted complaints of lower back pain and bilateral knee pain. He diagnosed “lower back pain secondary to mild disc changes at the L5/S1 level but no radiculopathy and no neuropathic pain in his legs.”
Other than the history he took from Mr Micallef, Dr Bentivoglio made no reference to the right shoulder including in response to a series of questions as to the history provided by Mr Micallef, the diagnosis of each injury and consequential disabilities, prognosis, causation and the mechanism of injury. With respect to the mechanism of injury, Dr Bentivoglio said the manner in which the incident occurred, which was a heavy lifting injury from repetitive bending and lifting was “quite consistent with someone developing lower back pain.”
With respect to treatment, Dr Bentivoglio said Mr Micallef’s disability as a result of the injury was chronic back pain “which has only been partially relieved by conservative treatment, in particular, exercise physiology.”[26] He said:
“He has only been treated with conservative treatment and medication and pain clinic treatment, at which time he has had multiple injections, none of which have really helped the situation adequately, and they are done by the pain clinic. I am not a pain clinic physician. Nothing has really helped him except for the exercise physiology, of which he had 75 treatments.”[27]
[26] ARD page 31.
[27] ARD page 32.
As to likely future treatment, Dr Bentivoglio said one would have to consider further exercise physiology “because this was helping him. He has not done it for the last six months.” Dr Bentivoglio said he agreed with Dr Gorman that further pain clinic treatment or surgery would not help Mr Micallef. He did not think sacroiliac injections would help because he had already had them, and the bone scan did not show any inflammation in that joint, and multiple radiofrequency ablations and steroid injections had not helped.
Dr Bentivoglio said Mr Micallef was “slowly, but surely getting better with exercise physiology, and I believe he should have further exercise physiology treatment.”[28]
[28] ARD page 33.

Dr Guirgis’s report

Dr Guirgis saw Mr Micallef for assessment on 21 February 2023 and reported on 9 March 2023.[29]
[29] ARD page 36.
Dr Guirgis took a history from Mr Micallef that, on 12 March 2020 after lifting bricks repetitively, “he felt a simultaneous onset of pain in his back and right shoulder.” He noted that Mr Micallef had been under the care of Dr Nair, Dr Hou and Dr Khong. He said he disagreed with their opinions about whether various treatment was reasonable or not.
Under “Ongoing symptoms”, Dr Guirgis noted lower back and “painful stiffness, clicking and heaviness of the right shoulder with increased symptoms in cold and wet weather, specifically, when lifting the arm sidewards, or forwards.” He described the shoulder pain in detail.
Dr Guirgis referred to “risk factors” for the development of shoulder pain including highly repetitive use of the arm in loading and unloading bricks into and from a wheelbarrow, working to pull loads over the pulley to a higher floor, and heavy workloads. He described the effects of muscle fatigue on humoral external rotation. He concluded that “one should accept the right shoulder component of his injury complex to be the result of the bricklaying activities performed on 12 March 2020 in the course of his employment.” He described the lumbar spine injury, but, as that injury is not in dispute, I will not refer to that further here.
Dr Guirgis concluded that Mr Micallef’s employment was a substantial contributing factor to his right shoulder and lower back injuries.
Dr Guirgis noted that Mr Micallef had been treated by Dr Hou and by Dr Nair who recommended injections, radiofrequency ablation and further physiotherapy, and by Dr Khong who recommended a cortisone injection in the right sacroiliac joint. He noted Dr Sheehy’s opinion that “unnecessary invasive procedures” had perpetuated his symptoms and pain. He noted Dr Gorman’s comment that the bone scan did not show abnormalities in the sacroiliac joint.
Dr Guirgis described Dr Gorman’s and Dr Sheehy’s[30] comments as unhelpful because, it appeared, he considered they were offering personal rather than medical advice. He said he found the advice by Dr Nair and Dr Khong “to be among the accepted standards for managing spinal injuries.” Dr Guirgis did not otherwise comment on whether treatment was reasonably necessary.
[30] That does not appear to be a report from Dr Sheehy in the documents before the Commission.

Exercise physiologist’s reports

Michelle Dang, exercise physiologist, reported on 10 May 2021 that Mr Micallef reported some improvements in his lumbar pain, but still had “significant stiffness and tightness in the lumbar region, thoracic, spine, and lower extremity”. He reported “gradual onset of shoulder pain due to playing his guitar for prolonged periods.” On 28 May 2021, she referred to the injured areas as “lower back”.[31]
[31] ARD page 505.
Ms Dang reported on 10 June 2021 to Dr Morgan Mo that Mr Micallef reported “moderate persistent, aching pain in the lower back, with ongoing neurological symptoms radiating down to his right hip.” He also complained of “significant stiffness and moderate pain symptoms in bilateral knees.”[32] There is no reference in the report to complaint of symptoms in the right shoulder. There is no reference in reports dated 21 June 2021 and 6 July 2021 to the right shoulder.
[32] ARD page 452.
On 18 July 2021, 30 August 2021, 8 September 2021, Ms Dang referred in the heading of her report to the injured areas as “lumbar spine, right shoulder”.[33] On 30 November 2021 and 18 January 2022, she again referred to the injured area as lower back only.
[33] ARD pages 463, 464, 473.
Dr David Gorman, pain management specialist, provided reports dated 12 July 2021 and 22 September 2021.[34] His reports are mainly relevant to the question of treatment for Mr Micallef’s pain and psychological symptoms. He noted an MRI of Mr Micallef’s right shoulder on 30 January 2021 which showed “no definite internal derangement demonstrated; degenerative change in the acromioclavicular joint”. His reports make no reference to complaints of symptoms in the right shoulder.
[34] Reply pages 32, 42.

Associate Professor (A/P) Miniter’s report

Orthopaedic surgeon, A/P Paul Miniter, saw Mr Micallef for assessment on 5 May 2023 and reported on 15 May 2023. He took a history that Mr Micallef’s back had been a problem over the years, and in March 2020, when he was at work pushing a wheelbarrow over fairly heavy muddy surfaces, he had “a gradual development of lower back pain”.
A/P Miniter commented on aspects of Mr Micallef’s treatment which he did not consider particularly helpful. There is no reference in his report to any complaint of symptoms in the right shoulder.

SUBMISSIONS
The applicant’s submissions

Mr Carney submits that Mr Micallef’s history of work as a bricklayer since 2009 is important. Mr Micallef describes the work he was doing on 12 March 2020 when he felt an onset of pain in his lower back and right shoulder. He saw his general practitioner and was referred to Dr Nair. It is not suggested that Dr Nair treated his right shoulder.
Mr Carney refers to the following reports referring to the right shoulder:
·The first mention of symptoms in the right shoulder appears to be in Dr Hou’s report of 16 June 2020, when she reported that Mr Micallef complained of lower back pain radiating up to the right shoulder. Mr Carney submits that it might be thought strange to have pain radiating upwards in that way, but the point is that the report documents an early complaint of pain in the right shoulder.
·On 18 July 2021, Ms Dang noted the injured areas as the lower back and right shoulder.
·On 23 March 2022, 27 April 2022 and 9 May 2022, Dr Calvache-Rubio noted pain in the right shoulder.
Mr Carney submits that the most significant of these is Dr Hou’s report within three months of injury, before it could be suggested that there was any contamination from talking to doctors or solicitors.
Turning to the treating doctors, Mr Carney submits Dr Guirgis refers to the right shoulder in detail and he explains how the injury sustained by Mr Micallef could occur.
With respect to the claim for medical expenses, Mr Carney submits that Dr Bentivoglio is the main support for continuing exercise physiology for Mr Micallef’s lower back. Dr Bentivoglio agrees with Dr Gorman that injections will not help and says Mr Micallef should have further exercise physiology. He says the only treatment that works is exercise physiology and Dr Khong also says Mr Micallef should have physiotherapy and hydrotherapy if he obtains benefit from them.
Mr Carney says that, where doctors support continuing physiotherapy, it is more appropriate that he have exercise physiology under Ms. Dang. In any event, it is clear that all other treatments are not working.
Ms Dang also says it is important that Mr Micallef continue with exercise physiology for his lower back. Mr Carney submits that, although she refers to the right shoulder, her treatment was clearly for the lower back, and the claim for medical expenses is for continuing treatment for the lower back. On 30 August 2021, Ms Dang said she would continue with the program. At 30 November 2021, Mr Micallef was still having mild moderate pain in his lower back but he had demonstrated gradual improvement in his lumbar mobility, and made considerable improvements in his functional capacity.
Mr Carney submits that, with treatment from Ms Dang, Mr Micallef was gradually improving. Treatment appears to have stopped soon after the dispute notice issued in March 2022, at which point Mr Micallef was on his way to being able to return to work.
Mr Carney refers to Diab v NRMA Ltd[35] and Rose v Health Commission[36] and submits that treatment need not be completely curative. Ms Dang and Dr Bentivoglio both say that treatment will help get Mr Micallef back to work. While Dr Gorman’s report is mainly directed to invasive treatment and does not assist with respect to exercise physiology, he does not take account of the fact that, at January 2022, treatment was relieving Mr Micallef’s lower back pain and increasing his functionality.
[35] Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab).
[36] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose).

The respondent’s submissions

The respondent disagrees with Mr Carney’s interpretation of Dr Hou’s report. Mr Parker submits that Mr Micallef had had intermittent lower back pain for approximately nine years. Dr Hou took a history that, on the day in question, he twisted his back. There is no reference to his shoulder on that day. Mr Parker submits there is no complaint to Dr Hou of pain in the right shoulder and no history of twisting or hurting the right shoulder on 12 March 2020.
Mr Parker submits that Mr Micallef’s claim for injury to the right shoulder cannot be accepted. The general practitioner’s records on 12 March 2020 noted acute on chronic lower back pain and pain radiating to the right buttock. After that first appointment, he saw doctors at the practice regularly, and not a single record of right shoulder symptoms this recorded. The only other reference is in Dr Khong’s report.
With respect to the claim for treatment, Mr Parker submits the mere fact that Mr Micallef wants the treatment does not make it reasonably necessary, especially given that he was seeing his doctors so frequently, sometimes several times in one week, raising the question as to why he would need that treatment.
Mr Parker submits that Mr Micallef did not go to Workers Doctors until 21 December 2020 and I would not be satisfied of injury.

Submissions in reply

Mr Carney submits that the frequency of appointments is a matter between the applicant and his doctor. He agrees that Workers Doctors were the only treating doctors to take note of complaints of right shoulder pain. However, it is evidence of a complaint at that time.
With respect to Dr Guirgis, Mr Carney submits that he is relied upon for diagnosis. Mr Carney acknowledges that Mr Micallef saw Dr Guirgis three years after the injury, and his report is not relied on as evidence of complaint.

CONSIDERATION

Did Mr Micallef sustain injury to his right shoulder?

Section 4 of the Act defines injury as follows:
“In this Act –
Injury –
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Mr Micallef 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: Department of Education and Training v Ireland[37] and Nguyen v Cosmopolitan Homes.[38]
[37] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[38] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
A “common sense” approach is to be taken to determining questions of causation, by careful analysis of the evidence, including a careful analysis of the expert evidence: Kooragang Cement Pty Ltd v Bates and Kirunda v State of New South Wales (No 4).[39]
[39] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang); Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45.
Mr Micallef’s statement is dated 3 July 2023, more than three years after the alleged injury. He states that he was required to lift bricks from a wheelbarrow into a bucket that was hauled up by means of a pulley to an upper floor. Weather on the day was wet and the ground was uneven with a lot of slush. By around lunch time, he felt an onset of pain in his back and right shoulder.
With some variations, Mr Micallef gave broadly consistent accounts of how the injury occurred to the doctors and health care professionals. Dr Godakandage took a history that he felt “acute pain while lifting bricks at work”. Dr Calvache-Rubio reported that he was “pushing a wheelbarrow when he misplaced his step and felt immediate lower back pain”. Mr Kang recorded that Mr Micallef was using a pulley system when he “felt gradual pain in lower back that got worse throughout the day”. Dr Bentivoglio said he was pushing a heavy wheelbarrow through mud and taking bricks and mortar up with a pulley. Dr Guirgis took a history that, on 12 March 2020 after lifting bricks repetitively, “he felt a simultaneous onset of pain ….”
The respondent has not taken issue with Mr Micallef’s accounts of how the injury occurred and, to the extent that there are variations in them, I do not think they are significant.
What is significant, however, is that there is no reference in any clinical record or report of injury to the right shoulder or symptoms of pain in the right shoulder before January 2021, when Mr Micallef first attended on Workers Doctors.
I do not agree with Mr Carney’s submission that Dr Hou’s report is evidence of injury to the right shoulder or complaint of symptoms in the right shoulder.
Dr Hou reported that Mr Micallef “described [pain] mainly over the right lower back, which radiates up to his right shoulder blade, and down the right leg to posterior right by ending at the knee.” (emphasis added). It is clear that Dr Hou was referring to Mr Micallef’s right lower back as the source of the radiating pain both upwards and downwards. I do not accept that her report supports of finding that Mr Micallef injured his right shoulder on 12 March 2020.
Mr Carney did not specifically take me to Dr Hou’s report of 9 September 2020, in which she notes that Mr Micallef complained of pain between his shoulder blades when extending his right leg but I would come to the same conclusion about that report: it does not support a finding that Mr Micallef injured his right shoulder on 12 March 2020.
Dr Hou took a history that Mr Micallef was at work as a bricklayer “when he twisted his back.” She did not record a complaint of pain in the right shoulder at the time. Where she recorded her “Impression” she did so in identical terms, including in those reports where she noted pain radiating up from the lower back to the shoulder blade and pain between the shoulder blades on extending his right leg.
Mr Micallef has not offered any explanation as to why his general practitioners’ records make no reference to the right shoulder throughout some 78 appointments between March 2020 and December 2020. The general practitioners’ notes are detailed. They refer to complaints of pain radiating to his buttock and down his right left leg, and Mr Kang noted a complaint of pain in the right thoracic area. Mr Micallef has not disputed the records.
It is reasonable to conclude, had Mr Micallef mentioned complaints about his right shoulder, that his doctors or Mr Kang would have included them in their notes.
The Certificates of Capacity issued by Our Medical Home Marsden Park all describe Mr Micallef’s injury and the circumstances in which it occurred in identical terms. The diagnosis of injury is described as “Discopathy in lumbar spine and possible Annular fissure in Lumpbar [sic] spine”. As to how it was related to his work, each describes “acute pain while lifting bricks at work”.
Only four certificates from Our Medical Home Marsden Park are in evidence. However, considering the absence in the notes of any reference to the right shoulder, it is a reasonable inference that they were all in the same terms, a nun referred to the right shoulder.
Courts have cautioned that medical records should be approached with care. The weight of particular material has to be assessed in light of the purpose and nature of the documentary record, the circumstances in which it was created and by whom: Davis v Council of the City of Wagga Wagga,[40] King v Collins,[41] Mastronardi v State of New South Wales. In Mason v Demasi,[42] Basten J said apparent inconsistencies between an applicant’s testimony and those in medical records should be treated with caution for a range of reasons including where the health professional has not given evidence about how and why the history was recorded.
[40] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[41] King v Collins [2007] NSWCA 122.
[42] Mason v Demasi [2009] NSWCA 227.
That is not to say that unexplained gaps or inconsistencies in clinical records can simply be disregarded. In the circumstances of this case, a complete absence of any record of complaint about the right shoulder from the date of injury until December 2020, some nine months later, raise serious doubts about Mr Micallef’s claim.
It is not clear what led Mr Micallef to consult Workers Doctors in January 2021. He makes no reference in his statement to seeing them and no reference to the MRI they referred him for. The records indicate he continued to see his usual doctors throughout this time, though less frequently, without any mention in their notes of the MRI or complaint about the right shoulder.
On 10 May 2021, Ms Dang reported that Mr Micallef reported some improvements in his lumbar pain but still had “significant stiffness and tightness in the lumbar region, thoracic, spine and lower extremity”. He reported “gradual onset of shoulder pain due to playing his guitar for prolonged periods.” Nothing in her report related that gradual onset of shoulder pain to his claimed workplace injury.

Ms Dang reported on 10 June 2021 to Dr Morgan Mo that Mr Micallef reported “moderate persistent, aching pain in the lower back, with ongoing neurological symptoms radiating down to his right hip.” He also complained of “significant stiffness and moderate pain symptoms in bilateral knees.”[43] There is no reference in the report to complaint of symptoms in the right shoulder. There is no reference in reports dated 21 June 2021 and 6 July 2021 to the right shoulder.
[43] ARD page 452.
On 18 July 2021, 30 August 2021, 8 September 2021, Ms Dang referred in the heading of her report to the injured areas as “lumbar spine, right shoulder”.[44] On 30 November 2021 and 18 January 2022, she again referred to the injured area as lower back only.
[44] ARD pages 463, 464, 473.
It is not clear what Ms Dang meant by the “injured area” in her reports but nothing in the body of her reports relates any right shoulder symptoms to Mr Micallef’s workplace injury.
Dr Nair, Dr Vote, Dr Khong and Mr Kang did not record a complaint of symptoms in the right shoulder or make any diagnosis in respect of it.
Leaving aside Dr Guirgis, where doctors did take a history from Mr Micallef of pain in the right shoulder on the day of the injury, none of them makes any further reference to it in the body of the reports.
Dr Bentivoglio took a history from Mr Micallef of an injury on 12 March 2020 “when he developed lower back pain and right shoulder pain after a lot of repetitive bending and lifting of bricks.” He noted Mr Micallef’s attendance on various doctors and his treatment.
Under “Present Condition” Dr Bentivoglio noted complaints of lower back pain and bilateral knee pain. He diagnosed “lower back pain secondary to mild disc changes at the L5/S1 level but no radiculopathy and no neuropathic pain in his legs.” There is no explanation as to why there is no diagnosis in relation to the right shoulder, and it is not mentioned again after the history taken from Mr Micallef.
Dr Gorman noted that Mr Micallef had had an MRI of his right shoulder but he did not express any opinion as to causation.
Dr Guirgis saw Mr Micallef for assessment on 21 February 2023 and provided a detailed report. He took a history from Mr Micallef that, on 12 March 2020 after lifting bricks repetitively, “he felt a simultaneous onset of pain in his back and right shoulder.” He noted that Mr Micallef had been under the care of Dr Nair, Dr Hou and Dr Khong. He said he disagreed with their opinions about whether various treatment was reasonable or not.
According to his report, Dr Guirgis was provided with reports from Dr Gorman, Dr Lim, Dr Khong, Dr Nair and Dr Bentivoglio, and clinical records from Dr Godakandage and Workers Doctors.
Under “Ongoing symptoms”, Dr Guirgis noted lower back and “painful stiffness, clicking and heaviness of the right shoulder with increased symptoms in cold and wet weather, specifically, when lifting the arm sidewards, or forwards.” He described the shoulder pain in detail.
Dr Guirgis referred to “risk factors” for the development of shoulder pain including highly repetitive use of the arm in loading and unloading bricks into and from a wheelbarrow, working to pull loads over the pulley to a higher floor, and heavy workloads. He described the effects of muscle fatigue on humoral external rotation. He concluded that “one should accept the right shoulder component of his injury complex to be the result of the bricklaying activities performed on 12 March 2020 in the course of his employment.”
Dr Guirgis concluded that Mr Micallef’s employment was a substantial contributing factor to his right shoulder and lower back injuries. His opinion appears to be based on Mr Micallef’s report that he had pain in his right shoulder on 12 March 2020 and the “risk factors” for shoulder injury that were associated with his employment. Dr Guirgis does not appear to have considered the absence of any report of right shoulder injury before around December 2020. He simply concludes that “one should accept the right shoulder component of his injury complex to be the result of the labouring activities performed on 12 March 2020.”
Considering that he saw Mr Micallef more than three years after 12 March 2020, in my view, Dr Guirgis had to do more than accept uncritically what Mr Micallef told him and identify risk factors associated with his employment, and from there, conclude that his employment was a substantial contributing factor to injury to his right shoulder.
Considering all of the evidence before me, I am not satisfied that Mr Micallef has discharged the onus of establishing that he suffered injury to his right shoulder arising out of or in the course of his employment on 12 March 2020.
It follows that there is no basis on which to refer Mr Micallef’s accepted lumbar spine injury to a Medical Assessor and his claim for lump sum compensation must fail.

Claim for treatment expenses

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)”.
What is reasonably necessary treatment was considered by Burke CCJ in the context of former legislation in Rose v Health Commission (NSW)[45] at [42]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[45] Rose v Health Commission (NSW)(1986) 2 NSWCCR 32.
Considering the factors relevant to reasonably necessary treatment under s 60 of the 1987 Act, Burke CCJ said in Bartolo v Western Sydney Area Health Service:[46]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[46] Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233.
With respect to Bartolo, Deputy President Roche in Diab said it was not simply a matter of asking whether it is better that the worker have the treatment or not. He said at [88]-[89]:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
There is no dispute that Mr Micallef suffered injury to his lumbar spine on 12 March 2020. I do not understand the respondent to dispute that he continues to have pain in his lumbar spine as a result of his accepted injury.
Mr Micallef’s claim is particularised as physiotherapy recommended by Independent Medical Examiner, Dr Peter Bentivoglio, and treating neurosurgeon, Dr Peter Khong. Mr Carney submitted that, whether referred to his physiotherapy or exercise physiology, his claim should succeed. I have some difficulty with that submission, but it is true that the medical reports refer to both. It is also reasonably clear that both forms of treatment were directed towards Mr Micallef’s lumbar spine.
Dr Nair reported in October 2020 that Mr Micallef was still having pain in his lower back. I noted that physiotherapy had not helped, and the next “gradation of treatment” was corticosteroid injections and radiofrequency ablation. He noted that Mr Micallef had undergone corticosteroid injections and advised him to “continue with physical therapy, exercise physiology and hydrotherapy.”
In 2020, Dr Hou suggested a treatment plan comprising painkilling medication, lumbar spine injection, use of a TENS machine, a roller for upper back stretches, and consideration of medicinal cannabis. On 3 November 2020, she performed a right sacroiliac injection.[47]
[47] This does not accord with the dates in Mr Micallef’s statement of evidence but nothing turns on this.
In July 2020, Mr Kang recommended continuing physiotherapy and exercises. He noted “slow improvement” and Mr Micallef’s low back pain.
In July 2020, Dr Vote reported that Mr Micallef was “currently finishing physiotherapy but said there has not been a marked improvement in his situation.” Dr Vote considered the treatment, proposed by Dr Nair as "somewhat premature” because he would normally expect the condition to settle in time with rest and quiet activity, and there was no evidence of new pathology, such as a disc rupture to explain Mr Micallef’s symptoms. He recommended a further month to six weeks of quiet, physical treatment, and rest, after which, if there was no improvement, the treatment proposed by Dr Nair would be reasonable.
In May 2022, Dr Khong noted that Mr Micallef had had injections, physiotherapy, hydrotherapy, medication and TENS. He said he had previously recommended a right-sided injection and possibly a radiofrequency ablation; depending on where the pain was coming from, he might require a fusion. Dr Khong said Mr Micallef should have ongoing physiotherapy and hydrotherapy if he derived benefit from it.
In May 2022, Dr Bentivoglio reported that Mr Micallef’s disability as a result of the injury was chronic back pain “which has only been partially relieved by conservative treatment, in particular, exercise physiology.” He said nothing had really helped him “except for the exercise physiology, of which he had 75 treatments.” As to future treatment, Dr Bentivoglio said one would have to consider further exercise physiology “because this was helping him. He has not done it for the last six months.” He said Mr Micallef was “slowly, but surely getting better with exercise physiology, and I believe he should have further exercise physiology treatment.”[48]
[48] ARD page 33.
Dr Guirgis took issue with the opinions of the respondent’s doctors as to reasonably necessary treatment. He noted that Mr Micallef had been treated by Dr Hou, Dr Nair who recommended injections, radiofrequency ablation and further physiotherapy, and Dr Khong who recommended a cortisone injection in the right sacroiliac joint. He said he found the advice by Dr Nair and Dr Khong “to be among the accepted standards for managing spinal injuries.” Dr Guirgis did not otherwise comment on whether treatment was reasonably necessary.
Dr Gorman and A/P Miniter did not comment as to treatment other than that A/P Miniter commented that aspects of Mr Micallef’s treatment were not particularly helpful.
Considering all of the evidence, I find that the weight of the evidence supports the conclusion that continuing physiotherapy or exercise physiology is reasonably necessary treatment for Mr Micallef’s lumbar spine. The evidence establishes that he was improving and was on his way to returning to work before treatment was ceased. He has had virtually all forms of available conservative treatment, and there is no suggestion that he should undergo surgery at his age.
There was no application for leave to amend the ARD to claim exercise physiotherapy. As to whether the reasonably necessary treatment is described as physiotherapy or exercise physiology, it seems the simplest way is to make an order in terms of the treatment as claimed.

[2023] NSWPIC 669

12 December 2023