Neorczik v George Weston Foods Limited
[2022] NSWPIC 286
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Neorczik v George Weston Foods Limited [2022] NSWPIC 286 |
| APPLICANT: | Steven Neorczik |
| RESPONDENT: | George Weston Foods Limited |
| Member: | Jill Toohey |
| DATE OF DECISION: | 15 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for the cost of lumbar spinal fusion; worker had accepted injury to lumbar spine in 1998 while employed by the respondent; worker left employment with the respondent around 2002; worker suffered aggravation around 2017 while employed by a different employer; whether the need for surgery was the result of the 1998 injury; whether the original injury made a material contribution; whether the surgery would not be needed where it not for the aggravation; worker continued to experience effects of original injury; Held- finding that the original injury made a material contribution to the need for the proposed treatment; respondent to pay the costs of and associated with the treatment. |
| determinations made: | 1. 1. The applicant sustained injury to his lumbar spine arising out of or in the course of his employment with the respondent on 12 February 1998. 2. 2. The L5/S1 anterior into body fusion proposed by Dr Peter Khong is reasonably necessary treatment as a result of the applicant’s injury. 3. 3. The respondent to pay the cost of and associated with the proposed treatment pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
1. Mr Steven Neorczik, the applicant in these proceedings, sustained injury to his lumbar spine on 12 February 1998 while employed by the respondent, Tip Top Bakeries (now George Weston Foods Ltd). He was working with others installing a 400 kg electrical motor when it slipped on its trolley. In trying to stabilise it, he took its full weight. He experienced severe lower back pain and left leg pain.
2. Mr Neorczik was off work for two weeks before returning to work on restricted duties. His employer accepted liability for his injury.
3. Mr Neorczik resigned from Tip Top Bakeries around February 2002 for personal reasons. He went overseas for a period and, from 2005 to 2008, he operated his own business as an electrical contractor. He describes his work thereafter as “a bit spasmodic” for reasons including a deterioration in his lower back.
4. By a Complying Agreement entered into around April 2004, the respondent agreed to pay Mr Neorczik lump sum compensation for permanent impairment of his back and left leg above the knee. By a further Complying Agreement in June 2019, the respondent agreed to pay further lump sum compensation in respect of his injuries.
5. On 21 December 2015, Mr Neorczik started work for Retail Ready Operations Pty Ltd (Retail Ready) as a production technician. He worked for a time in the poultry section, a position that he says involved very limited repetitive heavy lifting. Around December 2016, he was moved to the red meat section where he says the mechanical work increased significantly, and he sustained injury by way of aggravation of his lumbar spine.
6. Mr Neorczik ceased work on 7 September 2017 and has not worked since.
7. By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 24 March 2022, Mr Neorczik claims the cost of treatment proposed by Dr Peter Khong, being an L5/S1 anterior interbody fusion and post-operative physiotherapy, rehabilitation and pain management. He claims the proposed treatment is reasonably necessary as a result of the injury on 12 February 1998.
8. The respondent denies liability to compensate Mr Neorczik for the cost of the proposed treatment and says it is not reasonably necessary as a result of his injury on 12 February 1998.
ISSUES FOR DETERMINATION
9. The respondent does not dispute that the proposed surgery is reasonable treatment for Mr Neorczik’s condition.
10. The parties agree that the issue remaining in dispute is whether the proposed L5/S1 anterior interbody fusion and associated treatment is reasonably necessary as a result of the injury sustained by Mr Neorczik on 12 February 1998.
PROCEDURE BEFORE THE COMMISSION
11. Parties attended a conciliation/arbitration hearing on 23 May 2022. Mr Neorczik was represented by Mr Bill Carney of counsel, instructed by Ms Catherine McKay. The respondent was represented by Mr Philip Perry of counsel, instructed by Mr Najeh Marhaba. Parties could not reach agreement and the matter proceeded to hearing.
12. 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 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
13. The following documents were in evidence before the Commission and considered in making this determination:
a. (a) ARD and attached documents, and
b. (b) Reply and attached documents.
Oral Evidence
a.14. Neither party sought leave to adduce oral evidence or cross-examine any witness.
Mr Neorczik’s evidence
a.15. Mr Neorczik’s evidence is set out in written statements dated 18 July 2019, 10 October 2019 and 21 March 2022.
b.16. Mr Neorczik describes the circumstances of his injury on 12 February 1998 after which he was off work for approximately two weeks with severe pain in his lower back and intermittent pain in his legs. He returned to work on restricted duties, without any heavy lifting. He resigned from Tip Top Bakeries around February 2002 for personal reasons.
c.17. Mr Neorczik states that he continued to have problems with his lower back at various times over the years following the injury on 12 February 1998, and he took care only to take on sedentary roles where possible so as to avoid aggravating his back pain, but his lower back had become very painful by 2015 to the extent that he was suffering sciatica and undergoing various treatments and investigations.
d.18. Mr Neorczik states that he commenced employment as a production technician with Retail Ready on 21 December 2015. He worked in the poultry section, where there was no very heavy or repetitive lifting, and the mechanical work, which involved heavy lifting, was very limited.
e.19. Around December 2016, Mr Neorczik was moved to the red meat section where he says the mechanical work increased significantly. He describes stripping machines, some of which weighed approximately 30 kg. Work on one particular machine, the “APS saw”, involved removing stainless steel inserts that were “extremely heavy” and “extremely awkward to get to”. He had to put his body in “awkward positions, often leaning and bending over to remove the parts”. Usually, when doing heavy lifting, he would not notice pain until later that day or the next day but, when he was working on the APS saw, he felt “immediate onset of pain” when lifting out the inserts.
f.20. Mr Neorczik states that he has been off work since 7 September 2017 as a result of the injury he sustained at Retail Ready. He describes the effects of his ongoing symptoms and chronic pain.
Medical evidence
a.21. Mr Neorczik attended on his then general practitioner, Dr Daryl Chamberlain, on the evening of 12 February 1998. Dr Chamberlain referred him to orthopaedic surgeon, Dr Raymond Wallace.
Dr Wallace’s reports
a.22. Dr Wallace reported to Dr Chamberlain on 23 February 1998 that he had seen Mr Neorczik that day. It was evidently his second consultation because Dr Wallace said he reviewed him “five days after his last presentation”.
b.23. Dr Wallace noted that a CT scan showed “evidence of a left-sided disc protrusion at the L5/S1 level, causing compression at the left S1 nerve root”. He said Mr Neorczik should continue with rest and analgesic medication.
c.24. Dr Wallace saw Mr Neorczik next on 16 March 1998 when he complained of “persisting pain in his lumbar spine radiating to the left buttock”. Dr Wallace recommended he continue with his current home exercise program.
d.25. Dr Wallace reviewed Mr Neorczik on 17 April 1998. He reported that Mr Neorczik “noted an overall reduction in the level of his pain with only occasional backache early in the morning” and some paraesthesia and numbness in the toes of his left foot. He said Mr Neorczik should continue with his current normal duties at work.
e.26. On 26 March 1999, Dr Wallace reported that he had reviewed Mr Neorczik, 12 months after his last presentation. Mr Neorczik was having no treatment at the time and was continuing his pre-injury duties. He complained of “persisting left-sided lumbar spinal pain with no radiation to his lower limbs”. Dr Wallace recommended a bone scan examination and repeat CT examination of his lumbar spine “to delineate his current pathology”.
f.27. On 30 April 1999, Dr Wallace reported that the bone scan showed evidence of spondylosis at the L5/S1 disc, and the CT showed a minor posterior disc bulge at the L4/5 level displacing the left S1 nerve root. He said Mr Neorczik would benefit from review by spinal surgeon, Dr John Stephens, for consideration of operative intervention and said he had arranged this referral. There is no report from Dr Stephens in evidence and it is not clear whether Mr Neorczik actually attended on him.
g.28. Dr Wallace next saw Mr Neorczik on 5 November 2003, apparently having been referred again by Dr Chamberlain. Dr Wallace referred to a review around 1999 by Dr Henry Hudson, neurosurgeon, who had advised against operative intervention and had referred Mr Neorczik for hydrotherapy. Dr Wallace noted he had had no further therapeutic intervention but had “recently noted increasing lumbar spinal pain with no history of further injury”. Mr Neorczik complained of “persistent left-sided lumbar pain” which was worse with sitting, standing, bending, twisting or lifting movements. He noted that Mr Neorczik had started a new job as an electrician in September 2002 and was currently doing full-time normal duties but his work involved “only moderate physical activity” compared to his previous job.
h.29. Dr Wallace said he believed Mr Neorczik was suffering from “ongoing symptoms of his lumbar spine related to lumbar spondylosis and an old lumbosacral disc protrusion” and he would benefit from ongoing conservative treatment. Dr Wallace said he did not believe he would benefit from operative intervention at that time.
30. On 24 November 2003, Dr Wallace reported that he had reviewed Mr Neorczik and was providing him with a certificate stating he would benefit from the purchase of a bed with good back support for relief of his lumbar spinal pain.
j.31. Dr Wallace’s last report is dated 14 January 2004 when Mr Neorczik complained of persistent lumbar spinal pain. He was continuing with his program of treatment including physiotherapy and medication. Dr Wallace said he believed he was suffering from “ongoing mechanical back pain” and suggested he continue with physiotherapy and hydrotherapy.
Dr Hudson’s reports
a.32. On 9 August 1999, Dr Hudson reported to Dr Wallace. He took a history of the injury in 1998. He said Mr Neorczik’s back pain continued to be his main problem and was worse at night and if doing any lifting. He recommended MRI scans.
b.33. On 30 September 1999, Dr Hudson sought the insurer’s approval for hydrotherapy. On 18 October 1999, he reported that the MRI showed Mr Neorczik had a disc bulge centrally placed at L5/S1 level. It was not seen to be in contact with any nerve root and therefore “not a surgical condition”. He said he had advised Mr Neorczik to continue with hydrotherapy and painkillers and avoid lifting activities as much as possible.
c.34. Dr Hudson reported to Mr Neorczik’s solicitors on 23 January 2001. He described his consultations up to September 1999 at which time Mr Neorczik complained of back ache and some leg pains intermittently especially after sitting on the car for a long time, doing lifting at work and the like “and at other times he was asymptomatic”. Dr Hudson said he had found no significant abnormality in the MRI scans, and the disc lesion was too small to consider surgical treatment. He said he estimated that the disc bulge “may become smaller with dehydration and the passage of time” but “it was possible it could become worse and end up causing pressure on the nerve root”.
d.35. Dr Hudson reported that, when he reviewed Mr Neorczik on 3 March 2000, he still complained of soreness in the back, especially at work. His symptoms had not changed significantly despite that he was doing a lot of swimming. He was avoiding heavy lifting and was managing to do his job putting only the essential tools in the toolbox. Dr Hudson said he continued to believe the disc lesion was too small and Mr Neorczik’s symptoms “too vague” for surgery.
e.36. In response to questions, Dr Hudson said Mr Neorczik had a disability that stemmed from the 1998 injury. His prognosis was guarded. Dr Hudson assessed permanent impairment of the lower back at 20% and said the symptoms were brought about by the incident at work. Mr Neorczik’s prognosis for a full recovery was guarded but he should be able to continue working on restricted duties.
Dr Gray’s report
a.37. Dr Randolph Gray saw Mr Neorczik on 28 October 2015 and reported to his then general practitioner, Dr Stephen Lagaida, who had referred him for “assessment of his acute onset of low back pain and left leg neurogenic symptoms”. Dr Gray noted that Mr Neorczik was not currently employed. He noted that a CT scan in September 2015 showed “advanced degeneration of the L5/S1 disc with loss of discomfort causing bilateral L5/S1 foraminal stenosis”.
b.38. Dr Gray said the “mainstay of management” would be conservative given the short duration of the exacerbation, with appropriate activity modification. He said in the longer term, if Mr Neorczik continued to have significant issues with his lower back, surgical options could be explored but would be “the very last option” given his young age.
Dr Khong’s reports
a.39. In his request for approval for surgery dated 17 August 2019, Dr Khong referred to Mr Neorczik’s 1998 back injury. He said the pain “gradually improved on its own”.
b.40. Dr Khong reported to Mr Neorczik’s solicitors on 8 March 2021 that he had seen Mr Neorczik seven times between May 2019 and August 2020.
c.41. Dr Khong recounted the history of Mr Neorczik’s 1998 injury after which the pain “gradually improved on it own”. He noted that Mr Neorczik had been working at the meat processing factory for nearly two years when he was transferred to the red meat section which involved “lifting heavy equipment, and awkward leaning and lifting loads over 20 kgs in weight”. Mr Neorczik started to experience lower back pain and left leg pain some time before March 2017. He noted that Mr Neorczik recalled having “some form of injection in 2015 either without relief, or with only very temporary relief”.
d.42. Dr Khong outlined Mr Neorczik’s continuing complaints, including severe lower back pain in 2019. Imaging demonstrated “multilevel degenerative pathology, most severe in the L5/S1 disc space”. He said Mr Neorczik experienced exacerbation of the degenerative changes in his lumbar spine which had not significantly improved. His prognosis without surgery was likely to be poor.
e.43. Dr Khong said he agreed with Dr Patrick’s report of 12 February 2021 (below) and his recommendation for surgery, and he agreed with Dr Patrick’s comments regarding causation, the “serious workplace accident” in 1998, and subsequent further exacerbations. He said lumbar fusion was reasonably necessary as a result of the injury while employed by the respondent which “materially contributed to his current need for his lumbar spine fusion”.
a.44. Mr Neorczik is no longer seeing Dr Khong and he is no longer proposed as treating surgeon. The reasons are not clear. Mr Perry drew this to my attention in submissions and said there is no proposal or invoice from the surgeon who now proposes to carry out the surgery. Mr Perry acknowledged that, in the end this does not itself affect the determination as to whether the treatment proposed by Dr Khong is reasonably necessary as a result of the 1998 injury.
Dr Lagaida’s report
a.45. Dr Lagaida reported to Mr Neorczik’s solicitors on 21 November 2021 that Mr Neorczik had been his patient since 2007. He had been complaining of worsening back pain and sciatica since 17 March 2012 as a result of his 1998 injury. In 2013 the pain became “unbearable” and he referred Mr Neorczik for a CT scan which “showed moderate loss of disc height at L5/S1 and degenerative changes in both L5/S1 and L4/5 being the original injury” sustained in 1998.
b.46. Dr Lagaida described a further CT scan in September 2015 which showed the injury to the lumbar disc had deteriorated and the nerve was now being compressed, which he said explained Mr Neorczik’s symptoms. He said a cortisone injection in October 2015 did not help and he referred Mr Neorczik to Dr Gray whose approach was conservative; surgery was not ruled out in the longer term if the problem persisted but was considered the last option due to his age. Meanwhile, Mr Neorczik was taking anti-inflammatory medication, Lyrica, Tramal and an anti-depressant to prevent chronic nerve-related pain. Dr Lagaida said physiotherapy and the cortisone injection had not helped over the longer term.
c.47. Dr Lagaida was asked “whether the main contributing factor for the necessity of the spinal fusion” was the deteriorated discs from the original injury “rather than the aggravation between December 2016 and September 2017 while working for [Ready Retail]”. He said:
“On the balance of probabilities, the medical evidence would tend to suggest that the main contributing factor would be the deteriorated disks L5/S1 as per original injury … rather than the aggravation between December 2016 and 7 September 2017 whilst working at [Retail Ready].”
a.48. Dr Lagaida said the medical evidence “clearly shows a pattern of degenerative changes from 2012 onwards leading to a cortisone injection in 2015 before Steven commenced work at [Retail Ready]”. There was “clearly further degeneration of the original injured discs” as well as progressive degenerative changes at L3/4 and L4/5 consistent with a chronic progressive degenerative condition of the back before commencing work for Retail Ready. He said:
“On the balance of probability, the main contributing factor would be the degeneration of the original injury sustained on the 12 February 1998 as per medical evidence would imply, with further contributory aggravation whilst working at [Retail Ready]. The aggravation whilst working at [Retail Ready] would be considered a contributing cause but not the main cause and the need for surgery as there was already evidence of advanced degeneration of the original injury and the possibility of surgery prior to Stephen commencing work at [Retail Ready].”
a.49. Dr Lagaida provided a detailed explanation for his opinion. He said the L5/S1 disc injured in 1998 was the most deteriorated disc and was the primary cause for the back pain. It had caused a “cascading effect with accelerated degeneration of other discs due to uneven pressure being exerted on the spine”.
Dr Patrick’s reports
a.50. Dr Patrick reported to Mr Neorczik’s solicitors on 12 February 2021 that he saw Mr Neorczik in person on 16 July 2020 and again, without further clinical examination, on 13 February 2021. He noted the history of the 1998 injury and Mr Neorczik’s subsequent employment, noting that, since 2008, he had predominantly worked in light duty type jobs until a year into working with Retail Ready.
b.51. Dr Patrick took a history that Mr Neorczik “was never really the same” since his original injury. He bought an orthopaedic bed in 2015 but it was unsatisfactory and he was never able to carry out heavy lifting. Dr Patrick said:
“it is my strong view that [his] need for lumbar spinal fusion surgery does indeed result from the undisputed serious back injury of 12 February 1998. This was certainly the major incident at work injury during the entirety of his employment situations.”
a.52. Dr Patrick noted that Mr Neorczik was no longer seeing Dr Khong who had recommended the spinal fusion and he would most likely be dealing with a neurosurgeon and spine surgeon locally. He said:
“it is my strong opinion that Mr Neorczik’s ongoing significant spinal incapacity is as a result of his employment [with the respondent] and it is my strong view that his employment/work, and the work accident there was a substantial contributing factor to his injuries.”
a.53. Dr Patrick said the spinal surgery was reasonably necessary “as a direct result of the major work injury” in 1998 which had “clearly materially contributed in a major way to his current need for lumbar spinal fusion surgery”. That incident “set the significant lumbar spinal problems in motion and this has far and away been the most serious of his injuries”.
b.54. Dr Patrick provided a supplementary report dated 17 March 2022 in response to a briefing letter dated 6 August 2021. He referred to further extensive documentation provided to him dating between February 1996 and February 2022 including radiological scans. He said he agreed with the commentary by Dr Khong in his report of 8 March 2021 and with his conclusion that lumbar fusion was reasonably necessary.
c.55. Dr Patrick said the medical evidence clearly established that the original injury in 1998 involved the L5/S1 nerve root. He described that injury was “at the extreme end of the spectrum of workplace accidents of this type”. He said in most of the relevant imaging studies, the L5/S1 disc was identified as the most diseased and the one requiring surgery.
d.56. Dr Patrick said it was “not at all abnormal that the prospect of a lumbar spinal fusion was only proposed after the later aggravation” when Mr Neorczik was employed with Retail Ready. He said:
“it is my opinion on the balance of probabilities that the necessity for spinal fusion and decompression at the L5/S1 level is indeed likely to have eventuated in any event despite the aggravation in Mr Neorczik’s lumbar spine between December 2016 and 7 September 2017.”
a.57. As to why surgery might well be needed some years after the original accident, Dr Patrick said had the “serious workplace accident” in 1998 not occurred, then “on balance of probability there would be no question with regard to a spinal fusion surgery”. He said “the unquestionably serious workplace accident [in 1998] is the major reason for putting forward a lumbar spinal fusion surgery”.
Other reports
a.58. Spine surgeon, Dr Brian Hsu, reported to Dr Lagaida on 28 June 2018. His notes show that Mr Neorczik said he had been experiencing back pain since 1998; his symptoms had become worse over the previous 12 months and he rated them 8/10. Dr Hsu noted the MRI scan and said he had arranged a bone scan.
b.59. Neurosurgeon, Dr James Van Gelder, reported to Dr Lagaida that he saw Mr Neorczik on 7 May 2018. Mr Neorczik complained of “two to three years of worsening back pain radiating to his left leg” which had been present since his work-related injury 20 years earlier. Mr Neorczik reported that he had temporary benefit from injections in 2013 and had recently stopped work because it was “flaring up his back symptoms”. Dr Van Gelder said he could not identify a cause for the worsening particular symptoms; he had referred Mr Neorczik for an MRI scan and suggested he consult with Dr Lagaida before deciding whether to return to see him again.
c.60. Dr Hsu’s report documents Mr Neorczik’s account of back pain since 1998. Dr Van Gelder’s report documents his account of worsening back pain from some time before, or around, when he started employment with Ready Retail.
d.61. Orthopaedic surgeon, Dr Peter Giblin, saw Mr Neorczik for assessment on 8 October 2018. He took a history of the injury in 1998 and the aggravation around 2016. His report is problematic in that he refers to a “well recorded history” of a soft tissue injury to the lower back which was “reasonably causally related to the subject accident 19 September 2009” (italics added). He said surgical considerations were not mandatory at that juncture but could not be excluded in future and may take the form of an L4/5 discectomy.
e.62. Dr Giblin’s report foreshadowed the need for the proposed treatment but it does not assist in determining causation.
f.63. General practitioner, Dr Eric Lim, provided a report dated 29 December 2018. His report mainly concerns the aggravation in 2017 and does not assist with the present determination. Dr Lim said the history given by Mr Neorczik was “consistent with employment being the main contributing factor” to the injury in 2017.
g.64. Orthopaedic surgeon, Dr Michael Ryan, reported on 10 October 2019 to Mr Neorczik’s then solicitors in relation to the aggravation during his employment with Retail Ready. In response to a question whether his employment with Retail Ready with the main contributing factor to the aggravation (emphasis added), Dr Ryan said that it was.
SUBMISSIONS
a.65. Parties’ submissions were recorded and the transcript is available. The following summarises the principal points.
The applicant’s submissions
a.66. Mr Carney refers to Mr Neorczik’s account of the incident in February 1998 in which he took the full weight of a motor weighing approximately 400 kg. He saw his doctor later that day and apparently saw Dr Wallace for the first time around 18 February 1998. Mr Carney submits that the referral to a specialist so soon after the injury underlines its seriousness.
b.67. Mr Carney submits that, In August 1999, Dr Hudson assessed permanent impairment of Mr Neorczik’s lower back at 20% and said the symptoms were brought about by the incident at work. Dr Wallace’s and Dr Hudson’s reports show that Mr Neorczik was still experiencing symptoms and complaining of pain in his lumbar spine in January 2004.
c.68. Mr Carney submits that the evidence shows that Mr Neorczik continued to have symptoms, he modified his duties and continued to have treatment, as a result of his injury. He started seeing Dr Lagaida in about 2008. Dr Lagaida reported that he had been complaining of pain and sciatica since March 2012 as a result of his injury. By 2013 the pain was “unbearable”. In October 2015, Dr Lagaida referred him to Dr Gray who referred him for a CT scan.
d.69. Mr Carney submits that the evidence shows that Mr Neorczik was continuing to have symptoms and treatment in 2015 as a result of his injury. Dr Gray said the CT showed advanced degeneration of the L5/S1 disc with the foraminal stenosis and said his lower back pain and left leg symptoms were likely secondary to the L5/S1 disc degeneration.
e.70. Mr Carney submits that all this occurred before Mr Neorczik started work for Retail Ready in December 2015. He was able to carry out his duties without too many problems until around December 2016. He continued seeing Dr Lagadia who reported on 21 November 2021 that there was clearly further degeneration of the original injured discs of L5/S1 from 2003 to 2015, and progressive degenerative changes at other levels consistent with a chronic progressive degenerative condition of the back before he started work for Retail Ready.
f.71. Mr Carney refers to Dr Lagadia’s opinion that, on the balance of probability, the main contributing factor to his condition was the degeneration of the original injury with further aggravation at Retail Ready. The aggravation was a contributing cause but not the main cause. Dr Lagadia said that there was already evidence of advanced degeneration of the original injury and the possibility of surgery before Mr Neorczik’s later employment.
g.72. Mr Carney submits that Dr Khong cannot say for sure if the re-aggravation was responsible for the need for surgery but he took a full history of the original “significant” injury and concluded that it materially contributed to the need for surgery.
h.73. Mr Carney refers also to Dr Van Gelder’s report that, in effect, the injury had been present at L5/S1 since 1998, and to Dr Hsu’s report in June 2018 dating the injury from 1998 and worse in the last 12 months.
74. Mr Carney submits that Dr Patrick is the main support for Mr Neorczik’s claim. Dr Patrick took a history of the significant injury and his strong opinion is that Mr Neorczik’s ongoing significant spinal incapacity is the result of his employment with the respondent, that his employment with the respondent was a substantial contributing factor to his injuries. Dr Patrick considers the proposed treatment is reasonably necessary as a direct result of the injury. Mr Carney submits his view is consistent with the views of Dr Wallace and Dr Hudson around the time of the injury.
j.75. Mr Carney submits that the evidence is clear that the injury in 1998 was severe and that Mr Neorczik has had problems since. His symptoms never went away despite modifying his activities. He continues to need the surgery recommended by Dr Khong.
The respondent’s submissions
a.76. Mr Perry submits that the question for determination is whether the 1998 injury has made a material contribution to the need for the proposed treatment. Mr Perry submits that the evidence makes clear that what happened between then and now made a minimal contribution.
b.77. Mr Perry submits that Dr Khong took a history that Mr Neorczik had gradually improved with time. Mr Perry asks why, if the original injury was so serious, it gradually improved. Dr Khong noted that the lower back pain started again when Mr Neorczik was transferred to the red meat section. In other words, Mr Perry submits, the pain relevantly started around March 2017, or just before, and not earlier.
c.78. Mr Perry submits that Dr Hsu also said that Mr Neorczik’s symptoms had been worse over the last 12 months and were now 8/10. Mr Perry submits that his symptoms were not like that before he started work at Ready Retail.
d.79. Mr Perry submits that Dr Hudson’s report as a treating neurosurgeon is important. Dr Wallace referred Mr Neorczik to Dr Hudson specifically to ask whether he needed surgery, and Dr Hudson said he did not. Mr Perry refers to Dr Hudson’s report of 23 January 2001 in which he said when he reviewed Mr Neorczik on 29 September 1999 he complained of backache and some leg ache intermittently and other times he was asymptomatic. Mr Perry submits that Dr Hudson found no significant abnormality in the CT scan and considered the bulge too small to warrant surgery. Mr Perry submits there is no evidence that the 1998 injury contributed to the need for surgery as opposed to the dramatic picture after 2017.
e.80. Mr Perry submits that Dr Ryan’s report supports the conclusion that, without employment with Retail Ready, Mr Neorczik would not need the proposed surgery. The evidence shows that he had improved in time and the pain gradually improved on its own. Mr Perry submits that, in light of the work he was doing at the time, and Dr Ryan’s opinion that his subsequent employment was the main contributing factor to the aggravation, Mr Neorczik has not gone close to establishing that the 1998 injury made a material contribution.
f.81. Mr Perry submits there was no question of surgery until 2017 after Mr Neorczik started doing what he described as “extremely heavy and awkward” work. The fact that Dr Hudson said there was a significant possibility that the pain could get worse is not enough. I would not accept there was a causal link of the Kooragang type. The causal chain was snapped especially by the heavy work Mr Neorczik did in 2017.
Submissions in reply
a.82. In reply, Mr Carney submits that the reality is that, but for the 1998 injury, the aggravation in 2017 and the need for surgery would not have arisen. Further, the concept of main contributing factor and material contribution are different. Mr Carney submits that there is clearly a material contribution from the original injury. The issue is not whether it arose from the 2017 incident but whether there was a material contribution from the first.
b.83. Mr Carney submits that Dr Hudson saw Mr Neorczik in 2003. He did not say he would only need surgery if there was a further injury. He said only that Mr Neorczik could get better, stay the same or get worse. Within a year of the 1998 injury, Dr Wallace thought surgery would possibly be needed. He did not say it would only be if there was a further injury or accident.
CONSIDERATION
a.84. 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).”
a.85. The respondent does not dispute that the treatment proposed by Dr Khong (whether performed by him or another surgeon) is reasonable necessary treatment for Mr Neorczik’s lumbar spine condition.
b.86. The issue in dispute is one of causation, whether the need for treatment arises from Mr Neorczik’s employment with the first respondent.
c.87. The work injury does not have to be the only, or even a substantial, cause of the need for the reasonably necessary treatment. In Murphy v Allity Management Services Pty Ltd, Deputy President Roche said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
a.88. The legal test of causation was described by Kirby P (as he then was) in KooragangCement Pty Ltd v Bates as follows:
“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
a.89. Mr Neorczik bears the onus of establishing, on the balance of probabilities, that the proposed treatment is reasonably necessary as a result of his 1998 injury, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland and Nguyen v Cosmopolitan Homes.
b.90. There is no dispute that Mr Neorczik sustained an injury to his lumbar spine in the course of his employment with the respondent in February 1998. Mr Perry asks why, if the injury was so serious, Dr Hudson recorded in 1999 that he was asymptomatic at times, and Dr Khong later recorded that the pain “gradually improved on its own”.
c.91. Dr Hudson’s comment has to be read in context of his reports overall. At the time of his report, Dr Wallace considered Mr Neorczik’s symptoms warranted referral to Dr Hudson, and when Dr Hudson reviewed him in March 2000, he still complained of stiffness in his back, especially at work, and his symptoms had not changed significantly despite him doing a lot of swimming. Dr Hudson considered Mr Neorczik’s prognosis for full recovery was guarded but he should be able to continue working on restricted duties.
a.92. Dr Khong’s report is not consistent with Mr Neorczik’s evidence and the histories taken by other doctors.
b.93. I am not persuaded that these statements in Dr Hudson’s and Dr Khong’s reports mean that Mr Neorczik no longer had symptoms from his injury and they do not mean that the injury made no material contribution to the need for surgery.
c.94. I accept that the 1998 injury was a serious injury. Mr Neorczik’s undisputed evidence is that he took the full weight of a 400 kg motor, if briefly. He felt “excruciating” pain. Dr Patrick described it as an “undisputed serious injury”, “at the extreme end of the spectrum of workplace accidents of this type”, and “far and away the most serious injury” during the entirely of his employment. Dr Khong said he agreed with Dr Patrick’s comments including about the “serious workplace accident in 1998” and subsequent further exacerbations.
d.95. Mr Neorczik’s evidence is that he continued to have problems with his lower back at various times over the years following the injury. He says he took care only to take on sedentary roles where possible so as to avoid aggravating his back pain. His uncontradicted evidence about the work he took on bears that out. He says his lower back had become very painful by 2015 to the extent that he was suffering sciatica and undergoing various treatments and investigations.
e.96. The medical evidence bears out Mr Neorczik’s claim that he continued to experience symptoms in his lower back following the 1998 injury.
f.97. On 26 March 1999, Dr Wallace recorded that Mr Neorczik was having no treatment at the time and was continuing his pre-injury duties. Nevertheless, he complained of “persisting left-sided lumbar spinal pain”. Dr Wallace considered his symptoms warranted a bone scan examination and repeat CT examination of his lumbar spine “to delineate his current pathology”.
g.98. In August 1999, Dr Hudson reported to Dr Wallace that Mr Neorczik’s back pain continued to be his main problem and was worse at night and if doing any lifting. He recommended MRI scans. In September 1999, he sought the insurer’s approval for hydrotherapy and advised Mr Neorczik to continue with hydrotherapy and painkillers and avoid lifting activities as much as possible.
h.99. Dr Hudson later reported that, in March 2000, Mr Neorczik still complained of soreness in the back, especially at work, and his symptoms had not changed significantly, even though he was doing a lot of swimming. He was avoiding heavy lifting and was managing to do his job putting only the essential tools in the toolbox. His prognosis for a full recovery was guarded but he should be able to continue working on restricted duties. Dr Hudson attributed his symptoms to the 1998 injury.
100. On 5 November 2003, five years after the injury, Dr Wallace noted Mr Neorczik had had no further therapeutic intervention but had “recently noted increasing lumbar spinal pain with no history of further injury”. He complained of “persistent left-sided lumbar pain” which was worse with sitting, standing, bending, twisting or lifting movements. He noted that Mr Neorczik had started a new job as an electrician in September 2002 and was doing full-time normal duties but his work involved only moderate physical activity compared to his previous job.
j.101. Dr Wallace’s report indicates that, even doing only moderate physical activity, and without any further injury, Mr Neorczik was still experiencing pain from his injury sufficient to warrant recommending he buy a bed with good back support to relieve his pain.
k.102. In January 2004, Dr Wallace recorded that Mr Neorczik complained of persistent lumbar spinal pain and suggested he continue with physiotherapy and hydrotherapy.
l.103. Around October 2015, Dr Lagaida referred Mr Neorczik to Dr Gray for assessment of his “acute onset of low back pain and left leg neurogenic symptoms”. Mr Neorczik was not employed at the time and there is no evidence of a novus actus interveniens that broke the chain of causation from the original injury. Dr Lagaida noted that a CT scan in September 2015 showed “advanced degeneration of the L5/S1 disc with loss of disc height causing bilateral L5/S1 foraminal stenosis”.
m.104. Dr Lagaida reported that Mr Neorczik had been complaining of worsening back pain and sciatica since March 2012 as a result of his 1998 injury. In 2013 the pain became “unbearable” and he referred Mr Neorczik for a CT scan which “showed moderate loss of disc height at L5/S1 and degenerative changes in both L5/S1 and L4/5” as a result of the 1998 injury.
n.105. Dr Lagaida reported that a further CT scan in September 2015 showed the injury to the lumbar disc had deteriorated and the nerve was now being compressed, which he said explained Mr Neorczik’s symptoms. A cortisone injection in October 2015 had not helped and he referred Mr Neorczik to Dr Gray. Meanwhile, Mr Neorczik was taking anti-inflammatory medication and other medications to manage his pain.
o.106. Dr Lagaida said the medical evidence “clearly shows a pattern of degenerative changes from 2012 onwards leading to a cortisone injection in 2015 before Steven commenced work at Retail Ready”.
p.107. Dr Lagaida was well-placed, as Mr Neorczik’s treating doctor over many years, to document his continuing symptoms and give an opinion as to their cause. He said there was clearly further degeneration of the original injured discs as well as progressive degenerative changes at L3/4 and L4/5 consistent with a chronic progressive degenerative condition of his back before he started work for Retail Ready.
q.108. In June 2018, Dr Hsu took a history from Mr Neorczik that he had been experiencing back pain since 1998 which had become worse over the previous 12 months, evidently since he moved positions at Retail Ready.
r.109. Dr Patrick did not see Mr Neorczik until 2021 but he also took a history that Mr Neorczik “was never really the same” after the 1998 injury, despite working in predominantly light duty type jobs until he moved into the heavier work at Retail Ready.
s.110. Considering Mr Neorczik’s evidence and the evidence of his treating and assessing doctors, I am satisfied that he continued to experience symptoms of back pain as a result of the 1998 injury up until the time he moved positions at Retail Ready where his symptoms were further aggravated.
t.111. Just because Mr Neorczik continued to experience back pain before the aggravation around 2016 or 2017, it does not follow that he would have needed surgery as a result of the original injury. However, Dr Lagaida and Dr Patrick were both of the view that he would have come to surgery because of the original injury, regardless of the later aggravation.
u.112. Dr Lagaida said the aggravation was “a contributing cause” but not the main cause. The advanced degeneration of the original surgery and the possibility of injury was there before Mr Neorczik started work at Retail Ready. Dr Lagaida described the “cascading effect” of the original injury.
113. Dr Patrick was more emphatic. He said it was his “strong view” that the need for the lumbar spinal fusion surgery resulted from the “undisputed serious back injury” in 1998.
w.114. There is no contrary medical opinion.
115. The possibility of surgery was foreshadowed by Dr Hudson in 2001. He said it was possible that Mr Neorczik’s back could become worse and end up causing pressure on the nerve root but he did not recommend surgery at the time. Dr Lagaida reported in September 2015 that a CT showed that had in fact happened. Dr Gray said in 2015, before Mr Neorczik started work for Retail Ready, that surgery was possible but he advised against it at the time because of Mr Neorczik’s young age.
y.116. Considering this evidence, it cannot be said that there would not have been a need for surgery had it not been for the aggravation in 2017.
z.117. Whether or not the injury was the “main contributing factor” is not to the point. The test is whether the 1998 injury made a material contribution to the need for the proposed treatment. The fact that the aggravation contributed further does not exclude that finding.
aa.118. I am satisfied, on the evidence, that the 1998 injury made a material contribution to the need for the proposed treatment. I am satisfied that the respondent is liable for the cost of, and associated with the proposed L5/S1 anterior interbody fusion.
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