Morris v Affinity Health Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Morris v Affinity Health Pty Ltd [2022] NSWPIC 142
APPLICANT:	Sarah Morris
RESPONDENT:	Affinity Health Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	5 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claims for weekly benefits, section 60 of the Workers Compensation Act 1987 (1987 Act) expenses and lump sum compensation by nurse alleging aggravation of cervical spondylosis as a result of a frank incident; the respondent employer denied liability, placing in issue injury of section 4 of the 1987 Act, substantial contributing factor/main contributing factor sections 9A & 4 (b) of the 1987 Act, capacity section 33 of the 1987 Act and the reasonable necessity for treatment expenses section 60 of the 1987 Act; the respondent denied the occurrence of the incident in which the applicant claims she was injured, or alternatively that any such incident aggravated the pre-existing cervical spondylosis; detailed examination of applicant’s evidence, contemporaneous evidence, evidence of treating neurosurgeon and qualified neurosurgeon; the respondent tendered no medical evidence; award for the applicant in respect of injury/main contributing factor thereto; respondent ordered to pay weekly benefits pursuant to section 37 and expenses pursuant to section 60 of the 1987 Act; Held- matter referred to Medical Assessor for assessment of permanent impairment; leave to parties to relist matter if necessary after issue of Medical Assessment Certificate if whole person impairment greater than 30% as found by the applicant’s qualified neurosurgeon.
DETERMINATIONS MADE:	1. The applicant sustained injury arising out of or in the course of her employment on 12 December 2019. 2. Such injury was the aggravation of the disease injury pf cervical spondylosis to which the applicant’s employment with the respondent was the main contributing factor. 3. The respondent is to pay the applicant $747 per week from 23 September 2020 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 4. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987. 5. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury on 12 December 2019. 6. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 10 March 2022 lodged by the applicant and attachments; (d) Application to Admit Late Documents dated 7 March 2022 lodged by the respondent and attached documents, and (e) Application to Admit Late Documents dated 29 March 2022 lodged by the respondent and attached late document. 7. The parties have leave to list the matter for further telephone conference, if necessary, after the issue of the Medical Assessment Certificate by the Medical Assessor and completion of any appeal consequent upon the issue of such Certificate.

STATEMENT OF REASONS

BACKGROUND

Sarah Morris (the applicant/Ms Morris) claims compensation for weekly benefits from 23 September 2020 to date and continuing, medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), and compensation for permanent impairment pursuant to s 66 of that Act as a result of injury arising out of or in the course of her employment with the respondent as a registered nurse on 12 December 2019 at the Strathfield Private Hospital. At around 4.30 – 5.30am on that day the applicant claims that she was lifting a patient with the assistance of a co-worker. The co-worker suddenly put the patient down on her side while the applicant was still holding on to her. This caused the applicant to suddenly jerk forward, as a result of which she felt immediate pain in her neck.
The applicant finished her rounds after which claims that she attempted to log in to the respondent’s “Riskman” computer system to report the accident. She was not able to do this as she had issues with her password and was waiting to be given a new password. Ms Morris says that by the end of her shift, her neck pain had subsided somewhat. She went home and spoke to her partner, and went to bed.
When she awoke the next day, Ms Morris claims she was experiencing a burning/pain sensation in her left groin area and around her stomach. She says that her neck pain had improved.
The applicant worked on a rostered shift from 11.30am until 3.30pm on 13 December 2019 and then commenced previously scheduled leave commencing 14 December 2019. This was due to expire on 6 January 2020. Ms Morris says that she continued to have groin and stomach pain, but did not relate these issues to her previous neck pain following the incident on 12 December 2019. She started dragging her feet and assumed this was because she was exhausted.
The applicant remained in and around home during her holidays and visited family and friends until 5 January 2020. She says that she continued to experience pain in her groin and in her left buttock area. She also had a persistent burning sensation, was continuing to drag her feet, started to notice that she was having trouble urinating, and experienced weakness when opening her bowels.
On 6 January 2020 the applicant’s partner discovered her on the bathroom floor after she had gone there to use the toilet. She was unable to get up, an ambulance was called and she was conveyed to Royal Prince Alfred Hospital (RPAH) where she came under the care of Dr Wong, neurosurgeon. On 10 January 2020 Dr Wong operated and performed a C3-C6 posterior decompression and lateral mass fusion. Ms Morris was released from hospital on 14 January 2020.
On 15 March 2020 the applicant requested, and was granted, leave from her employment until 14 September 2020.
On 22 May 2020 the applicant signed and lodged a Worker’s injury claim form[1]. Thereafter the respondent’s insurer, icare, paid the applicant weekly benefits until 15 September 2020.
[1] Application to Resolve a Dispute (ARD) p 22 (noting that the page references herein are to those in the Personal Injury Commission’s (Commission) electronic records).
On 2 September 2020 icare issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it denied liability for compensation for the applicant’s injury on 11 December 2019 [sic], and advised Ms Morris that weekly payments would end on 15 September 2020.[2]
[2] ARD p 39.
On 9 March 2021 the applicant was independently medically examined by Clinical Associate Professor Fearnside (Dr Fearnside) at the request of her solicitor. Dr Fearnside produced a report of that date[3] in which he expressed the opinion that Ms Morris had aggravated the cervical spondylosis from which she suffered in the workplace injury on 11 December 2019. Dr Fearnside diagnosed that the applicant was suffering from cervical spondylosis with spinal cord compression at C4/5, the aggravation causing cervical myelopathy. Dr Fearnside assessed the applicant as having sustained 37% whole person impairment (WPI) as a result of the injury sustained in December 2019.
[3] ARD p 50.
In response to a claim made on behalf of the applicant for lump sum compensation pursuant to s 66 of the 1987 Act, icare issued a further s 78 notice dated 21 September 2021 denying liability for such claim[4].
[4] ARD p 44.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant sustain injury on 12 December 2019 arising out of or in the course of her employment (s 4 of the 1987 Act)?
(b)    Was the applicant’s employment a substantial contributing factor to any injury sustained by the applicant on 12 December 2019 (s 9A of the1987 Act)?
(c)    Was the applicant’s employment the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease (s 4(b)(ii) of the 1987 Act)?
(d)    Has the applicant suffered total or partial incapacity for work as a result of any injury suffered by her on 12 December 2019 (s 33 of the 1987 Act)?
(e)    Is the applicant entitled to an award in her favour for medical and related expenses as a result of any injury she sustained on 12 December 2019 (s 60 of the 1987 Act)?
(f)    Is the applicant entitled to compensation for permanent impairment (s 66 of the 1987 Act)?

PROCEDURE BEFORE THE COMMISSION

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.
The parties attended a conciliation conference/arbitration hearing on 29 March 2022 conducted via telephone conference. Mr Stockley of counsel appeared for the applicant briefed by Ms Ross. The applicant attended on a separate line. Mr Combe of counsel appeared for the respondent briefed by Ms Davis. A representative attended on behalf of the insurer.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) dated 10 March 2022 lodged by the applicant with the following attached documents:
(i)updated wages schedule dated 10 March 2020;
(ii)payslips Karl’s Chicken 11 October 2021 – 13 February 2022;
(iii)payslip Riverview Hotel 24 January 2022 – 20 February 2022;
(iv)pre-injury average weekly earnings (PIAWE) calculation sheet, undated;
(v)general practitioner records of Dr Acton updated as 31 January 2022;
(vi)Croydon Physiotherapy records as at 14 February 2022;
(d)    AALD dated 7 February 2022 lodged by the respondent with the following attachments:
(i)medical report Dr Johnny Wong dated 21 October 2020;
(ii)medical report Dr Stacey Jankelowitz dated 2 December 2020;
(iii)medical report Dr Johnny Wong dated 11 February 2021, and
(e)    AALD dated 29 March 2022 lodged by the respondent with letter to Dr Johnny Wong from Gregory Masselos dated 7 December 2020 attached.

There is a Procare First Factual Report dated 4 August 2020 attached to the Reply[5] in respect of which the applicant raised an objection to it being admitted into evidence. The applicant’s counsel said he had instructions that it was not attached to the notice issued to the applicant pursuant to s 78 of the 1998 Act dated 2 September 2020, notwithstanding the fact that on the third page of such notice the words “Factual Investigation” appear in a list of documents that icare claims were attached to the notice as required by clause 41(3) of the Workers Compensation Regulation 2016. There is no date appearing next to these words. The applicant was not able to point to any other evidence in support of her submission. Following argument, for the reasons recorded in the transcript, the Factual Report was admitted into evidence.
[5] Reply p 17 (Factual Report).

Oral evidence

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

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.

Applicant

The applicant notes that the respondent denies liability in this matter because the corroborating material accompanying a work injury is not present in this case. There is no positive corroboration from the worker with whom the applicant was working when she was injured. The applicant however submits that her evidence as to the mechanism of her injury is unchallenged, noting that her statement dated 9 December 2021[6] was prepared with care and describes in detail the mechanism as to how she injured her neck. The applicant submits that the weight of the patient who she was attempting to lift with her co-worker, Doreen, had nothing to do with the physical demands placed on her and her co-worker, and that they were not able to obtain the cooperation of the patient because a language barrier (she did not speak English), and was demented.
[6] ARD p 2.
The reference to “NG” at [32] in the statement indicates that the patient had a feeding tube inserted into her nose, adding to the difficulty of the lift and the care that had to be exercised when moving the patient.
The applicant submits that she gives a plausible and detailed account of how she suffered her neck injury which is unchallenged by any contrary evidence.
The applicant notes the unsigned statement of Doreen Nyoni[7] and, on the assumption that the material in the statement is correct, Ms Nyoni believes that she was working with the applicant on the night shift on 11 December 2019, and remembers a French patient who had an NG (nose) tube. This is consistent with the applicant’s evidence. There is also consistency between the applicant’s evidence and the copies of the text messages attached to the ARD in respect of the applicant’s enquiry of Doreen in May 2020 if she recollected the incident with the French patient, although it is conceded that those messages are not dated[8].
[7] Reply p 32.
[8] ARD pp 777-782.
The applicant submits that the response of Doreen to the text enquiry of the applicant is unremarkable, given that she does not remember what happened on 12 December 2019.
The applicant submits that Dr Wong, who treated her on admission to RPAH on 14 January 2020, was not at that time alerted to the events at the Strathfield Private Hospital on 12 December 2019, and when he later was so alerted by the solicitor for the applicant, gave the report dated 25 February 2021 to the applicant’s solicitor[9].
[9] ARD p 552.
The applicant submits that the history recorded by Dr Wong at [2] in his report dated 25 February 2021, and the opinion of the doctor as to causation of her neck problems expressed at [7] in his report, clearly support the applicant’s case that her current neck problems are related to what happened to her on 12 December 2019.
The applicant submits that Dr Fearnside in his report dated 9 March 2021[10] takes a different approach to the issue of causation of her neck problem. At [7] in that report, Dr Fearnside notes that Dr Wong, in his report dated 25 February 2021 to the applicant’s solicitors, obtained a history very similar to that which he obtained, but concedes the possibility only of explaining the groin symptoms on the basis of a spinal cord disorder, saying that “The area of sensory loss did not correspond to any anatomical spinal cord, nerve root of [sic, or?] peripheral nerve distribution.” Dr Fearnside’s opinion on causation is expressed in [8.1] of the report, that is, an aggravation of cervical spondylosis which, on the balance of probabilities was present a the time of the injury. The causal connection between the incident of 11 December [sic, in fact 12 December] 2019 is provided by Dr Fearnside in [8.3] of his report.
[10] ARD p 50.
The applicant notes that the respondent, apparently wishes to advance the proposition that there was no event on 12 December 2019 in which the applicant suffered neck pain, or alternatively if there was, there is no connection between that event and the surgery that Dr Wong carried out on 10 January 2021. The problem with that approach is that it has not advanced any medical case to rebut the applicant’s medical case.
The applicant submits that, on the balance of probabilities, the event of 12 December 2019 occurred in the manner in which she described, causing her resulting incapacity and the degree of WPI assessed by Dr Fearnside. Accordingly, in the absence of any assessment of WPI submitted by the respondent, there is no “medical dispute” in accordance with the definition of that term in s 319 of the 1998 Act, and the Commission should enter an award in her favour in respect of 37% WPI. This would result in the applicant being a “worker with highest needs”, and in an entitlement to an award for weekly benefits in accordance with s 38A of the 1987 Act.
The applicant notes that any entitlement to a s 38A award would only date from the date on which such award was entered, meaning until that time, she would be entitled to an award pursuant to s 37 of the 1987 Act. Her capacity for work would have to be determined in accordance with s 32A. The applicant submits that the zenith of either her actual gross earnings, or her ability to earn in suitable employment, is represented by what she earned in her employment with Karl’s Chicken, about $700 per week. The applicant’s PIAWE is $1,809.12, and 80% thereof is $1,447.30, meaning that the applicant would have an entitlement to an award in the order of $747 per week.
The applicant notes that, in accordance with Schedule 3 to the 1987 Act, “job scheme payment” received by an injured worker after the date of injury is, for each week for which the job scheme payment applies, taken to be part of the worker’s actual gross earnings in relation to that week for the purposes of the definition of ”current weekly earnings.” Therefore, assuming that the jobkeeper payment was about $750 per week, that figure equates approximately to what the applicant was earning at Karl’s Chicken.

Respondent

In reply to the applicant’s submission in [28] above, the respondent submits that if there is a finding in favour of the applicant on the issue of injury, the matter should be referred to a Medical Assessor for assessment of WPI before any award in respect of weekly payments is entered.
The respondent then submits that, in respect of the principal matter in issue, the weight of the patient who the applicant says she was treating on 12 December 2019 is significant. The respondent draws attention to the weight of the patient recorded in the certificates of capacity in evidence. The first certificate, signed by the applicant on 1 June 2020 and certifying incapacity for the period from 6 January 2020 to 5 April 2020[11] includes a description of the patient as an incontinent French stroke patient with weight in excess of 80kg. The same entry appears in the following certificate of capacity certifying no current capacity for any work from 6 April 2020 to 30 June 2020[12].
[11] Reply p 72.
[12] Reply p 75.
In the Worker’s injury claim form signed by the applicant on 22 June 2020[13] the applicant records that she “…lifted a heavy patient with a co worker.” This accords with the representation previously made that the patient weighed in excess of 80kg.
[13] ARD p 22.
The respondent then draws attention to the RPAH clinical notes and the Case Description in the “Hospital Copy” of the “Ambulance Electronic Medical Record” dated 6 January 2020[14]. There is no complaint recorded therein of symptoms from 12 December 2019. Under “Triage & History”[15] and “History of presenting problem:” in the succeeding pages of the same document there is no reference to the incident on 12 December 2019. There is also no mention of the incident in the Progress Notes dated 7 January 2020 under “HPC”[16] or in the “Admission Summary” dated 10 January 2020[17]. The respondent submits that the applicant, as a nurse, would surely have mentioned problems commencing with the incident of 12 December 2019 if such was the case.
[14] Reply p 93 (the ambulance record).
[15] Reply p 94 (Triage & History note).
[16] Reply p 100.
[17] Reply p 106.
The respondent then submits that Dr Wong, in his report dated 21 October 2020 to Dr Stacey Jankelowitz[18] makes no mention of the incident of 12 December 2019, but refers to the applicant coming under his care “…after a fall, where she had spinal cord contusion with central cord syndrome on the background of congenital canal stenosis.” The respondent then notes the report from Dr Wong to Dr Acton dated 11 February 2021[19] in which the doctor refers to the recent report from the applicant’s legal team drawing to his attention that the history from his “…correspondence on 25 February 2020 was incorrect as such that she had suffered a traumatic neck injury.” This amended report to Dr Acton was brought about by the letter from the applicant’s solicitors to Dr Wong dated 7 December 2020[20] which the respondent submits is “damning and fatal” to the applicant’s case. It is an attempt by the applicant’s solicitor to rewrite the history of the case. Under “Relevant History” in that letter the applicant’s solicitor gives a history inconsistent with what was originally recorded by Dr Wong, and infers by this submission impropriety on the part of the solicitor. According to the submission, the solicitor was, at [3] on the second page of that letter, “spoon feeding” Dr Wong a version of events to suit the applicant’s case. The amended history and was “…completely unreliable and misleading.”
[18] AALD 7 February 2022 p 5.
[19] AALD 7 February 2022 p 8.
[20] AALD 29 March 2022 p 5.

The respondent then draws attention to Dr Wong’s report to Dr Acton dated 21 February 2020[21] in which Dr Wong records a consultation on that day and notes under “PROGRESS” the presentation of the applicant “…with significant hand symptoms following a traumatic injury in January 2020 consistent with spinal cord syndrome.” The respondent submits that the report of Dr Wong to the applicant’s solicitor dated 25 February 2021[22] should be given no weight at all. This is because Dr Wong, in drawing a probable causal connection between the applicant’s condition and the transfer incident on 11 [sic, 12] December 2019 where Ms Morris had noticed the onset of neck pain immediately afterwards, is basing his opinion on the incorrect history set out in [2] of the report.
[21] ARD p 548.
[22] ARD p 552.
The respondent submits that, in the absence of contemporaneous evidence of symptoms in the applicant’s neck on 12 December 2019, the Commission cannot be satisfied that Ms Morris suffered an injury to her neck on that day.
The respondent submits that the evidence of Doreen Nyoni can be accepted, notwithstanding the fact that her statement is unsigned. The respondent submits that there is no suggestion that it was not taken by an investigator, and what she says at [27] thereof is corroborated by the text messages attached to the ARD, notwithstanding that the messages themselves are not dated[23]. In particular, in those messages Doreen says at one point “Ooh I can’t remember” when asked by the applicant about her last shift with Doreen when she “…went to lift the stroke lady in room 32 and hurt my neck…” The applicant refers to this interchange at [37] of her statement dated 9 December 2021. The respondent submits that Doreen, as a nurse, should remember this significant event.
[23] ARD pp 777-782.
The respondent submits that there is no evidence of a report of injury on or about 12 December 2019 or of any report to a supervisor. It submits that the symptoms in the applicant’s neck probably started with a fall, and that there was no heavy lifting incident that caused such symptoms. Accordingly, there should be an award for the respondent on the issue of injury.
If that is not the case, the respondent submits that the matter should be referred to a Medical Assessor for assessment before any award for weekly benefits pursuant to s 38A of the 1987 Act is made. The assessment of Dr Fearnside, dated 9 March 2021, is over a year old, and there could have been some improvement in the applicant’s condition since that time. Dr Wong, in his report dated 25 February 2020 to Dr Acton, indicated that the applicant’s symptoms would gradually improve over time. Dr Fearnside, in his report dated 25 March 2021[24] at [3.4], also noted improvement following surgery.
[24] ARD p 59.
On the issue of any award pursuant to s 37 of the 1987 Act, the respondent submits that, in accordance with the applicant’s updated wages schedule[25], it accepts the applicant’s ability to earn as at 7 June 2021 is $630 per week until 3 February 2022, and that thereafter the applicant’s ability to earn should be determined at $720.12 per week.
[25] AALD 10 March 2022.

Applicant in response

The applicant submits that the respondent faces a difficult proposition in seeking to rebut her case in the absence of any evidence. Even if her statement is accepted at face value, there is no medical evidence in rebuttal. The approach of the respondent is to submit that the applicant should not be believed, and is lying, in what she says about her injury and there is no basis for this submission. Her account is that the neck pain she experienced on 12 December 2019 reduced to a manageable level and that she was preoccupied with the significant groin and buttock pain which eventually led to her hospitalisation. This is credible evidence and should be accepted.
The applicant also rejects the submission, either actual or inferred, that her solicitor was a “rogue” for placing before Dr Wong a version of events in accordance with his instructions. The applicant submits that such a submission should not have been made. It is also an attack on Dr Wong which was unacceptable and should be rejected in its entirety. The applicant’s history of events is on all fours with that provided to Dr Wong, and if that is correct it should be accepted. There is nothing in the ambulance notes or the triage notes to suggest that the applicant was involved in a fall before she was admitted to hospital on 6 January 2020, although Dr Wong may have assumed that Ms Morris’ presentation to the hospital was the result of a fall.
The applicant notes that there is no doubt that the applicant was involved in a later fall at Central Station in September 2020, but that is not relevant.
In respect of the claim for weekly benefits pursuant to either s 38A or 37 of the 1987 Act (referred to above at [28]-[29]), the applicant notes what was held by White AJ in Meat Carter Pty Ltd v Melides[26] to the effect that a s 38A award cannot commence until there has been an assessment by a Medical Assessor in accordance with Division 4 of Part 3 of the 1987 Act, that is pursuant to s 65(1), as to the degree of permanent impairment as a result of injury on 12 December 2019. That assessment is made under Pt 7 of Ch 7 of the 1998 Act, being an assessment made pursuant to a referral (ss 321 and 321A).
[26] [2020] NSWCA 307 (Melides).
Notwithstanding this notation, the applicant submits that the Commission has jurisdiction to make an award for compensation for permanent impairment pursuant to s 66 of the 1987 Act without the need for an assessment by a Medical Assessor.

FINDINGS AND REASONS

Injury

At the outset it is necessary to clear up any misunderstanding as to the precise date of injury. At different times this has been recorded as on 11 December 2019. However, it is not in issue that whatever occurred to the applicant when she claims she was being assisted by Doreen Nyoni with a French speaking patient, was in the early hours of 12 December 2019. The applicant commenced her shift at 7.00pm on 11 December 2019, and Ms Morris says that it occurred between 4.30am and 5.30am.
Attached to the Factual Report is a Memo on the letterhead of Strathfield Private Hospital dated 24 July 2020 from Valerie Whelan on the subject of “Sarah Morris”[27]. Included therein is a note that “Sarah worked a night duty shift on 11.12.19 with Doreen Nyoni.” Thereafter is the result of a search that was conducted on all French patients located on that ward on the relevant night. The records showed that there were five. Quite clearly, the first four listed are not relevant. In respect of the fifth patient, the following appears:
[27] Reply p 37.
“208791
Female patient 74 years (CAFAT)
Weight 60kg
Dense left sided stroke
Extensive right cerebral infarction
Naso -Gastric tube in situ
Urinary catheter in situ
Comfort measures only
Patient not obeying commands
Only moving upper and lower limbs
Report in patient's medical records 11.12.19 @ 01.30 hrs - Received care of patient from day staff.
Personal Hygiene attended to. BO noted. ICU draining concentrated urine. Barrier cream applied to pressure areas. NG flushes continue as planned. Patient agitated++ Reviewed by RMO. Midazalam
2mg S/C given as charted. Patient settled immediately. Daughter in attendance.
01.30 Morphine 5mg S/C given at 23.00hrs as charted
06.30 Patient incontinent of bowels and urine. Personal hygiene attended to. Settled overnight. NG flushed. Vitals stable.”
I accept that this Memo refers to the patient who the applicant and Doreen Nyoni were attending to in the early hours of 12 December 2019. The respondent submits that the weight of the patient perceived by the applicant is vital. The applicant rejects this submission, although it is conceded in the letter from the applicant’s solicitor to Dr Wong dated 7 December 2020 that Ms Morris believed that she weighed more than this.
In my view, there is no doubt that the patient presented significant challenges to the nurses looking after her. This is made quite clear in the first paragraph of the applicant’s second, undated, statement attached to the ARD when she was responding in the following terms to a question put to her “My response to What happened and how were you injured (page 3-9)”:
“Lifting a patient in room 32 on L1Ea stroke patient (from New Caledonia, non English speaking). Who was agitated and at risk of falling out of bed as she kept flinging her arms and legs over the bed rails. She was also at risk of aspirating as she was fed enterally via an NG tube. She needed constant attention ( I had her plus approximately 8 other patients as she frequently sliding down the bed, wiggling around the bed, throwing her pad on the floor and a risk to herself I had asked on multiple occasions for a special for her. She was also incontinent, I had given her two full washes during the shift and several sponges. The slide sheet had become soiled and I could not find another one In the hospital. I looked on the different floors. So we moved her manually, we tilted the bed back but she was a dead weight. too heavy for two women to keep moving. I asked staff on 1West to help but they were too busy. felt immediate neck pain. And I told Doreen who was helping me about this pain at the time.”[28]
[28] ARD p 12.
This evidence is consistent with what the applicant says at [30]-[37] of her statement dated 9 December 2021.
In the two certificates of capacity referred to at [32] above, the applicant refers to the weight of the patient as in excess of 80kg. However, I do not accept that the applicant’s perception of the weight of the patient is vital. It is a factor to be considered along with all of the other evidence. I do not accept that the applicant, as a nurse, would surely have mentioned problems commencing with the incident of 12 December 2019 when she was admitted to RPAH on 6 January 2020 if such was the case. She was on leave, she was not a medical practitioner and although her groin problems persisted after 12 December 2019, he neck symptoms had abated.
Similarly, I do not accept that the letter sent by the applicant’s solicitor to Dr Wong on 7 December 2020 is damning to her case, or that there was any impropriety in forwarding that letter. Ms Morris’ solicitor was entitled to put to the treating surgeon his instructions as to how his client was injured, and the response of Dr Wong, together with the contents of his earlier reports to Dr Acton dated 25 February 2020, and 21 October 2020 following the September 2020 fall at Central Station, is to be considered along with all of the other evidence. In his response to the letter from Greg Masselos dated 7 December 2020, Dr Wong prefaces his answer at [2] thereof with “The history you obtained or as you understand it.” He then went on to record such history, which accords with the history which Dr Fearnside recorded in his report to the applicant’s solicitor dated 9 March 2021. I do not accept that the applicant’s solicitor was attempting to rewrite history as submitted by the respondent.
I do not accept that Dr Wong did anything untoward in responding to the applicant’s solicitor as he did when the applicant’s instructions to her solicitor as to the mechanism of injury on 12 December 2019 were put to him.
I do not accept that the applicant was less than credible when giving her evidence as to the mechanism of injury. Having said that, I do acknowledge that with the passing of time, recollection of events can become unreliable and that contemporaneous records may provide more reliable evidence as to a particular occurrence, especially when compensation for personal injury is claimed. The most contemporaneous records in this case are the ambulance record created when the applicant was conveyed to hospital, and the notes in respect of the admission of the applicant to RPAH on 6 January 2020.
In the ambulance record referred to at [34] above, although indistinct, the following excerpt appears in first three lines of the Case History:
“O/A supine on bathroom floor, was trying to get to use toilet though had to lie down due to pain, nil fall assisted to floor by husband. O/E pt alert, well perfused, states lower left groin sharp pain radiating in back and both legs.”
In the Triage & History note it is recorded that the applicant “denies any trauma”.
At [47] of her statement dated 9 December 2021 the applicant states that on 6 January 2020, she was home alone and called her partner Neil whilst he was at work telling him to come home as she needed painkillers. She goes on to say:
“When he got home, he helped me to walk to the bathroom as I needed to use the toilet. I was unable to use the toilet due to the pain in my groin and could not get off the bathroom floor.”
Neil Edwards says at [11] in his statement dated 1 November 2020[29]:
“On 6 January 2020, I was at work when I received a call at work from Sarah asking me to come home as she couldn’t get out of bed. When I got home, she tried to walk to the bathroom and needed my help. I then helped her to the bathroom and a little while later I knocked on the door asking if she was okay. I then went into the bathroom and she was lying on the ground. I tried to lift her up, however it was too painful for her.”
[29] ARD p 20.
In his report to Dr Acton dated 25 February 2020 Dr Wong refers to the presentation of the applicant :
“…with significant hand symptoms following a traumatic injury in January 2020 consistent with spinal cord syndrome. She was admitted under my care at Royal Prince Albert Hospital and had undergone C3-C6 laminectomy and lateral mass fusion with good result.”
(emphasis added)
It is apparent from the foregoing that Dr Wong admitted the applicant to hospital on 6 January 2020 and proceed to surgery thereafter on his understanding that she had sustained a traumatic injury in January 2020. When the ambulance record and Triage & History note is considered along with the evidence of the applicant and Mr Edwards, it is apparent that such was not the case. The applicant did not fall to the bathroom floor on 6 January 2020, nor is there any other evidence of traumatic injury on that day. Dr Wong cannot have been referring to anything that happened prior to 6 January 2020 as he did not record any such occurrence.
This history of events gives credence to the applicant’s evidence that she did experience neck pain when assisting to lift the patient with Doreen Nyoni on 12 December 2019, and that she “…figured that it was a minor strain that would go away by itself.” In her unsigned statement, Doreen does not “…recall Sarah advising that her back or neck was hurting”, and this is confirmed by the text messages between the applicant and Doreen attached to the ARD.
When the applicant got home after her shift she says that she spoke with her partner about the incident at work, and this is confirmed by Mr Edwards. The applicant woke the next morning with groin pain, and this is confirmed by Mr Edwards. The applicant says that her neck pain had improved so she thought she had not damaged her neck
After her rostered shift on 13 December 2020 Ms Morris went on leave, and says that she continued to have groin and stomach pain, which led to her and her partner to a decision not to proceed with a tentative proposal for a trip to Bali in the second week of her leave, although no booking for the trip had been made. The applicant says that she started dragging her feet, and assumed that this was because she was exhausted. This evidence is confirmed by Mr Edwards, and I see no reason not to accept it.
The applicant also says at [46] in her statement that from 14 December 2019 to 5 January 2020 she continued to experience pain in her groin and also in her left buttocks area. She had a burning persistent sensation. She was continuing to drag her feet, and started to notice that she was having trouble urinating and experienced weakness when opening her bowels. It is apparent that the applicant was experiencing this last mentioned problem on 6 January 2020, could not get out of bed and subsequently had to call her partner at work to come home and assist her.
In my view this evidence is consistent with a developing problem that the applicant was experiencing, and consistent with the history recorded by Dr Fearnside in his report dated 9 March 2021. It provides a basis for the opinion of the doctor expressed in [8.1] of that report that:
“As the result of the workplace injury on 11/12119, Sarah Morris aggravated the
cervical spondylosis which, on the balance of probability was present at the time of the injury and from the RPAH discharge summary was noted in the MRI scan of 7/1/20, that being a high grade canal stenosis at C4/5. At that time it was noted that cord oedema was present. Ms Morris said that prior to 11 /12/19, there was no history of any injury or disorder affecting her neck. It seems unlikely that the nature and conditions of her employment as a nurse at Strathfield Private Hospital contributed in any significant manner although there may be a small contribution because of the nature and physical requirements of work as a registered nurse. The significant injury occurred on 11/12119.”
Dr Fearnside goes on to note that Ms Morris developed cervical myelopathy and underwent surgery on 10 January 2020 performed by Dr Wong, namely, a C3-6 laminectomy and lateral mass fusion. He notes that there was a pre-existing glove and stocking type sensory loss with paraesthesia which was caused by earlier chemotherapy, some ten years earlier but the applicant was definite that the sensory loss had increased following the incident on 11 December 2019. Dr Fearnside says that a glove and stocking type sensory loss is entirely consistent with a cervical myelopathy and is the expected pattern of sensory loss in this condition.
Dr Fearnside diagnoses cervical spondylosis with spinal cord compression at C4-5; aggravation causing cervical myelopathy. He says that there is a causal connection between work and the cervical myelopathy he described, the significant injury being on 11 December 2019. The doctor than goes on to deal with whether or not the nature and conditions of the applicant’s employment with the respondent contributed to the injury. He largely discounts this, although says that there may be some contribution over the years. These comments are not relevant to the applicant’s claim, as she is relying on a frank incident on 12 December 2019 as the cause of her injury.
Dr Fearnside is unable to explain the precise mechanism of the applicant’s groin symptoms. He supposes it is possible that this was secondary to the injury in December 2019, stating that there is a proximate relationship which is persuasive but not definite in terms of causation. He says that the pattern of sensory loss and pain is not consistent with a cervical myelopathy, at least in his experience, although he cannot exclude the possibility.
This last mentioned opinion of Dr Fearnside is in contrast to that of Dr Wong in his report dated 25 February 2021. In this report Dr Wong explains the development of the groin symptoms by the symptoms of the underlying spinal cord injury, where pain fibres emanating from the groin region would be disturbed by the spinal cord injury at the neck. He then says:
“The increase in symptoms on 6 January 2020 may be the result of progressive spinal cord damage or swelling in the spinal cord due to the underlying disc herniation from the initially [sic] work incident on 11 December 2019.”
Earlier in the report, in answer to a question posed to him at [3], Dr Wong acknowledges that, on the basis of the history obtained by the applicant’s solicitor or as he understood it, “…Ms Morris did not sustain a traumatic injury. This history of injury was never provided to me by the patient.”
Irrespective of the explanation for the groin symptoms experienced by the applicant up until 6 January 2020, both Dr Fearnside and Dr Wong, on the basis of what in my view is the correct history of what happened to the applicant at work on 12 December 2019 and thereafter leading up to her admission of the applicant to Royal Prince Alfred Hospital on 6 January 2020, give an opinion as to the causation of the injury to the neck which should be accepted. The applicant has on the balance of probabilities, discharged the onus on her to show that on 12 December 2019 she aggravated the cervical spondylosis which was present at the time of injury. Dr Fearnside notes that from the RPAH discharge summary the MRI scan of 7 January 2020 reveals a high grade stenosis at C4-5. It appears that Dr Fearnside is here referring to the MRI scan referred to in the hospital Progress Notes attached to the Reply[30].
[30] Reply p 102.

The applicant had no issues with her neck prior to 12 December 2019, as noted by Dr Fearnside. It follows that the applicant’s employment with the respondent on 12 December 2019 was the main contributing factor to the aggravation of the cervical spondylosis on that day.

Incapacity

It is not in issue that, as a result of her injury, the applicant suffers partial incapacity for work. She claims weekly benefits from 23 September 2020, having been in receipt of such benefits until 15 September 2020. Ms Morris cannot return to work performing full duties as a nurse, with Dr Fearnside saying that there are some areas of nursing where she would not be required to perform any manual work, such as administration.
According to her statement the applicant worked in waitressing jobs from 12 November 2020 to 22 March 2021, did not work thereafter until June 2021, and on 7 June 2021 returned to work as a waitress at “Karl’s Charcoal Chicken” (Karl’s Chicken) working 24 hours a week, earning about $600 net per week. From 26 June 2021 until about October 2021 the applicant was not able to continue this work due to the Sydney lockdown. During this time she was in receipt of “…the Centrelink disaster payment.” As the date of her statement on 9 December 2021 Ms Morris had returned to work at Karl’s Chicken.
The applicant submits that her ability to earn in suitable employment is approximately $700 gross per week, quantified by reference to her earnings in employment by Karl’s Chicken, payslips from which are attached to the AALD dated 10 March 2022. PIAWE are not disputed at $1,809.12 in accordance with the PIAWE calculation sheet attached to that AALD. Eighty percent of this figure (in respect of the second entitlement period for weeks 14 to 53) is $1,447.30. The applicant submits that she should be entitled to an award pursuant to s 37 of the 1987 Act of $747 per week.
In accordance with the applicant’s submission at [30] above, the applicant submits that, assuming that the jobkeeper payment was about $750 per week, which is taken to be part of the worker’s actual gross earnings in relation to that week for the purposes of the definition of ”current weekly earnings”, that figure equates approximately to what the applicant was earning at Karl’s Chicken.
The respondent’s submissions on the applicant’s ability to earn in suitable employment are set out in [41] above. My reading of the updated wages schedule is that the applicant claims an ability to earn/current weekly earnings of $721.12 per week from 3 January 2021, not 3 February 2021.
Having regard to the wage material that I have summarised and the parties’ submissions on the applicant’s ability to earn in suitable employment, I think that a figure of $700 per week is indicative of Ms Morris’ ability to earn in suitable employment for the purpose of an award in her favour from 23 September 2020 pursuant to s 37 of the 1987 Act. That is the figure I propose to use.
The applicant will therefore be entitled to an award of $747 per week from 23 September 2020 to date and continuing pursuant to s 37 of the 1987 Act.

Medical expenses

The applicant is entitled to an award in her favour for medical and related expenses pursuant to s 60 of the 1987 Act.

Assessment of permanent impairment

The applicant submits that I should enter an award in her favour for compensation for permanent impairment pursuant to s 66 of the 1987 Act in accordance with the assessment of Dr Fearnside of 37% WPI, there being no “medical dispute” about “the degree of permanent impairment if the worker as a result of an injury” in accordance with s 319 of the 1998 Act. The respondent opposes this, submitting that, because of the complex nature of the injury, such assessment should be referred to a Medical Assessor. Further, the respondent puts injury, per se, in dispute in the proceedings. I agree with the respondent’s submission that the matter should be referred to a Medical Assessor.
The applicant’s injury is significant and if she is assessed as having sustained in excess of 30% WPI, that is a worker with highest needs, she will be entitled to weekly payments of compensation in accordance with s 38A of the 1987 Act. At [58] in Melides, White JA held that a s 38A award cannot commence until there has been an assessment in accordance with Division 4 of Part 3 of the 1987 Act, that is pursuant to s 65(1) of the 1987 Act. Section 65(3) was repealed by the Workers Compensation Legislation Amendment Act 2018, with effect from 1 January 2019. That sub-section stated that if there was a dispute about the degree of impairment of an injured worker, the Commission (then the former Workers Compensation Commission) may not award permanent impairment compensation unless the degree of permanent impairment compensation has been assessed by an Approved Medical Specialist. An Approved Medical Specialist has, since the commencement of the Personal Injury Commission Act 2020, been referred to as a Medical Assessor.
The repeal of s 65(3) removes the requirement of the Commission to refer a matter to a Medical Assessor before making an award for compensation for permanent impairment. It gives a member of the Commission discretion as to whether or not to refer the matter for assessment. In the circumstances of this case, I am of the view that the matter should be so referred.
The entitlement of the applicant to weekly benefits after the expiration of the second entitlement period can then either be agreed between the parties, or in the absence of agreement determined by the Commission. The parties will have leave to relist the matter in that event.

SUMMARY

The applicant sustained injury arising out of or in the course of her employment on 12 December 2019.
Such injury was the aggravation of the disease of cervical spondylosis to which the applicant’s employment with the respondent was the main contributing factor.
The respondent is to pay the applicant $747 per week from 23 September 2020 to date and continuing pursuant to s 37 of the 1987 Act.
The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act.
The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury on 12 December 2019.
The documents to be referred to the Medical Assessor are:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    AALD dated 10 March 2022 lodged by the applicant and attached documents;
(d)    AALD dated 7 February 2022 lodged by the respondent and attached documents, and
(e)    AALD dated 29 March 2022 lodged by the respondent and attached document.
The parties have leave to list the matter for further telephone conference, if necessary, after the issue of the Medical Assessment Certificate by the Medical Assessor and completion of any appeal consequent upon the issue of such Certificate.

[2022] NSWPIC 142

5 April 2022