Nguyen v Real Pet Food Company Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nguyen v Real Pet Food Company Pty Ltd [2021] NSWPIC 283
APPLICANT:	Van Vuong Nguyen
RESPONDENT:	Real Pet Food Company Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	9 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for ongoing weekly benefits and compensation pursuant to section 60 of the 1987 Act for the costs of and incidental to thoracic and cervical spine surgeries; nature and conditions of employment; causation; nature of work duties in dispute; different expert opinion as to whether duties capable of causing pathology in the applicant’s spine; Held- the applicant sustained an injury pursuant to section 4(b)(ii) of the 1987 Act; orders made for ongoing weekly compensation and incurred section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained an injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 to his thoracic spine and cervical spine as a result of the nature and conditions of his employment with the respondent from 16 November 1983 to 10 September 2020. The Commission orders: 1. The respondent to pay the applicant weekly compensation from 10 September 2020 to date and continuing pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 on the basis of the agreed pre-injury average weekly earnings (PIAWE) figure of $1932.59, as periodically indexed pursuant to s 82A of the Workers Compensation Act 1987. 2. The respondent is to have credit for any payments of weekly compensation already made to date. 3. The respondent to pay the costs of and incidental to the T9-T12 decompressive laminectomy performed by Dr Simon McKechnie on 20 November 2020 and the cervical decompression at C4, C5, C6 and C7 performed by Dr McKechnie on 30 April 2021, in accordance with s 60 of the Workers Compensation Act 1987. 4. The respondent to pay the applicant’s other reasonably necessary treatment expenses incurred as a result of the injury, pursuant to s 60 of the Workers Compensation Act 1987, upon production of accounts, receipts and/or valid Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

Mr Van Vuong Nguyen (the applicant) was employed by Real Pet Food Company Pty Ltd (the respondent) from 16 November 1983 to 10 September 2020. The applicant claims that as a result of the nature and conditions of his employment with the respondent he sustained an injury to his cervical spine and thoracic spine.

Mr Nguyen completed a Worker’s Injury Claim Form on 25 September 2020. On 19 November 2020, the respondent’s insurer disputed liability for the injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

On 20 November 2020, the applicant underwent a T9-T12 decompressive laminectomy performed by neurosurgeon, Dr Simon McKechnie. A four-level cervical decompression was performed at C4, C5, C6 and C7 by Dr McKechnie on 30 April 2021.

The applicant sought review of the insurer’s decision to dispute liability for the injury, however, the decision was maintained in a notice issued on 4 May 2021.

The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 27 May 2021. The applicant seeks weekly payments from 10 September 2020 ongoing and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the thoracic and cervical surgeries as well as other incurred treatment expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 3 August 2021. The applicant was represented by Mr Stephen Hickey of counsel, instructed by Mr Danny Lam. The applicant was also assisted by an interpreter in the Vietnamese and English languages. The respondent was represented by Mr Fraser Doak of counsel, instructed by
Mr Nicolas Totaro. Representatives from the insurer were also present.
During the conciliation phase of the proceedings, it was agreed that the pre-injury average weekly earnings (PIAWE) figure was $1,932.59.
The deemed date of injury was agreed to be 10 September 2020.
There was some uncertainty as to whether the applicant had been paid weekly compensation to date. In the event of a favourable determination for the applicant, it was agreed that the Commission should make orders for weekly compensation that provided for credit to the respondent in respect of any payments already made.
It was agreed that orders pursuant to s 60 of the 1987 Act of a general nature were appropriate with respect to the incurred expenses other than the two surgeries performed by Dr McKechnie.
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.

ISSUES FOR DETERMINATION

12.The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury to his cervical spine and thoracic spine as a result of the nature and conditions of his employment with the respondent between 16 November 1983 and 10 September 2020;
(b) whether the thoracic and cervical surgeries performed by Dr McKechnie were reasonably necessary as a result of an injury;

(c) the applicant’s entitlement to the other s 60 expenses claimed; and

(d) the applicant’s entitlement to weekly compensation.

EVIDENCE

Documentary Evidence

13.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) documents attached to an Application to Admit Late Documents lodged by the applicant on 21 June 2021;

(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 27 July 2021; and

(e) documents attached to an Application to Admit Late Documents lodged by the applicant on 28 July 2021.

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

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 18 May 2021. The applicant said he commenced employment for Bush Pet Foods in 1981. Apart from a period of six months in which he was put off work, the applicant had worked for the business since then. The company had changed name a number of times and was now known as the respondent.
The applicant denied having any problems in his back, neck, legs or hands prior to commencing work with the respondent.
The applicant said he was employed as a forklift driver. The applicant’s job involved moving pallets stacked high with boxes of meat from one area of the factory to another as required. The applicant stated:
“Sometimes as I was moving the pallet some of the boxes fell off the pallet. Sometimes many of them fell off. I then had to lower the tynes and lower the pallet onto the ground, jump off my forklift and pickup each box and put it back onto the pallet. These boxes weighed from 14 to 32 kg. I was lifting boxes up to 32 kg and lifting above my head height. I had to extend my arms whilst lifting up to 32kg to put it back on the stack. I estimate that the boxes fall off at least 10 times a week. The boxes falling off was caused by the floor being wet so that the forklift slides causing the boxes to fall off.”
The applicant said he drove several different forklifts at work, some of which were new and some which were old. The suspension on the old forklifts was poor and when driving the old forklifts there was a lot of jolting of the applicant’s body up and down. The applicant recalled that there were three old forklifts and seven new forklifts.
There were uneven areas on the factory floor including some dips, cracks and holes in the concrete. When the forklift went over those areas, the applicant was thrown up and down or side to side in his seat. Each time the applicant landed directly on his buttocks and there was a jarring of his whole spine.
The applicant stated:
“Sometimes the pallets were in a corner so that I could not get the forklift to reach the pallet and I had to remove the boxes of meat by hand and use a hand trolley to push the boxes to the other area.
Sometimes I had to pull the boxes of meat from cages. I had to do a lot of bending and lifting in awkward spaces.”
The applicant stated that the heavy nature of his work caused him to have back pain from time to time. The applicant consulted a general practitioner, Dr Tan Vu on 27 September 2016 for lower back pain. By the beginning of 2017, the applicant started to notice pain in his right thigh. About two to three months later the applicant noticed numbness going down his right leg into his right foot. The applicant particularly noticed the symptoms whilst at work as he used his right foot to drive the forklift.
About six or seven months later, the applicant started to have tingling sensations in his right leg and left leg and foot. The applicant put up with the pain as he did not want to lose his job.
At the end of 2017, the applicant fainted at work when coming out of the cool room. The applicant attributed this to feeling tired and weak from lack of sleep due to his symptoms.
The applicant was initially sent by his employer to a cardiologist for tests. Around the same time, the applicant returned to see Dr Vu who referred the applicant to Dr Portek. Dr Portek referred the applicant for an injection which was performed on 23 January 2018. The applicant did not feel any better.
The applicant returned to work in mid-2018 and was still doing forklift driving. Half the time, the applicant was allowed to move cans which were lighter than the meat boxes. The applicant was still doing his old job the rest of the time.
The applicant’s leg problems got worse as he continued to work. In about July 2020, the applicant started to notice tingling in the last two fingers of his left hand. The applicant noticed right thumb and right middle finger tingling about two months later as well as tingling in the neck.
The applicant could not cope and went off work on 10 September 2020.
The applicant underwent five sessions of physiotherapy paid for by Medicare and a further four sessions which he funded himself. The applicant could not attend physiotherapy as often as he would want to.
The applicant underwent surgery to his back on 20 November 2020, performed by
Dr McKechnie. Dr McKechnie performed a cervical laminectomy on 30 April 2021.
The applicant said he experienced constant tingling in both legs, a cold sensation in both feet, tingling in the last two fingers of his left hand and right middle finger. The applicant was in constant pain and discomfort.

Job description

Attached to the respondent’s Application to Admit Late Documents is email correspondence from the respondent in relation to the applicant’s employment, dated 2 July 2021.
The applicant was noted to have commenced employment on 16 November 1983.
The applicant’s classification was “production team leader”. The applicant’s duties as a team leader in accordance with the enterprise agreement were described as follows:
“•     Means an employee who has demonstrated that they are able to competently perform the typical tasks of a Meat Processor Grade 4 in all areas of manufacturing and is designated as such by the Company.
·        This level requires minimal supervision.
·        Will lead process workers on a specific production line. Proficient in use of computers.
·        Able to work in multiple areas of the factory.
·        Have team leadership experience.
·        Oversee operation of machinery on specific lines.
·        Responsible for ensuring outputs are met.
·        Responsible for communication with Maintenance, Focus Managers and Shift Managers any corrective actions or feedback regarding production and people.
·        Input to performance reviews for production team.
·        Provide daily communications to team e.g. toolbox meetings.
·        Attend toolbox meetings and other meetings as required.
·        Responsible for ensuring the workplace health and safety of production team and lead by example.”
It was noted that the applicant had changed classification over the course of his employment. The following changes were recorded although it was noted that payroll records might provide more information:
“•     04/12/2002: moved to Multiskilled forklift driver (previously Forklift driver)
·        30/08/2006: moved to Supervisor (from Multiskilled forklift driver)
·        30/09/2009: changed department from Warehouse to Can line.”

Treating medical evidence

The applicant was seen by consultant rheumatologist, Dr Ian Portek, who prepared a report on 24 January 2018. Dr Portek took a history of one year of right lower limb pain and numbness of sudden onset. There was no obvious precipitating factor to the symptoms. The applicant was noted to be a forklift driver and used his right foot continuously. Dr Portek considered that the most likely aetiology of the radiculopathy was the L4/5 disc space.
Dr Portek arranged a neural sheath injection.
On 5 February 2018, Dr Portek reported that the neural sheath injection exacerbated the applicant’s pain. Dr Portek felt the applicant would benefit from physiotherapy. On 20 March 2018, Dr Portek thought the applicant should be reviewed by a neurologist.
Neurosurgeon, Dr Simon McKechnie saw the applicant on 17 August 2020. Dr McKechnie took a history as follows:
“He presents with a many year history of gradually worsening back and leg pain. It has now become bilateral. He has also noticed a loss of mobility, loss of balance, numbness in the legs and mild weakness. He has also noticed numbness in both hands. There is no history of recent spinal injury.”
Dr McKechnie reviewed an MRI scan but referred the applicant for a better quality MRI at Liverpool. On 10 September 2020, Dr McKechnie reported:
“The whole spine MRI demonstrates severe degenerative change from the superior cervical region to the sacral area. There are numerous disc and osteophyte complexes causing multiple areas of canal and foraminal stenosis. From C3 to C5 there is cord compression in the neck with myelomalacia. There is multilevel canal stenosis and the lumbar spine. There is severe bilateral foraminal stenosis at L4/5 and L5/S I. The main pathology is severe cord compression from T9 to T 12 with a large area of myelomalacia. Clinically this is the most likely cause of his deterioration.
I have discussed the severe generalised degenerative changes in the multiple areas of cauda equina and cord compression. Without surgery, I have explained that he will continue to deteriorate and ultimately become wheelchair-bound. There is a very good chance that surgery will prevent this from occurring but unfortunately neurological improvement may not occur due to the presence of myelomalacia. I have recommended a lower thoracic laminectomy.”
An operative note indicates that Dr McKechnie performed a T9-T12 laminectomy on 20 November 2020 at Liverpool Hospital. A further procedure described as a “Cervical laminectomy C4-6; undercutting C7” was performed by Dr McKechnie at Liverpool Hospital on 30 April 2021.
The applicant’s general practitioner, Dr Albert Nguyen, prepared a report for the applicant’s solicitor on 20 November 2020. Dr Nguyen first saw the applicant on 24 March 2020. The applicant reported recurrent, severe low back pain and leg pain for many years which had deteriorated recently. The condition was aggravated by prolonged standing or frequent heavy lifting. The applicant was diagnosed with lumbosacral back pain with a compression fracture of T10, disc prolapse at T10/11, T12/L1, L2/3, L3/4, L4/5 and L5/S1. The spinal cord was compressed and there appeared to be myelomalacia.
Asked to provide an opinion with regard to the cause of the applicant’s condition, Dr Nguyen commented:
“Mr Nguyen reported that he has been working for the same company since 1981. He stated that his employment required him to frequently lift weights up to 30kg. He is unable to recall any outside-of-work event that could cause him to have such a severe condition. Mr Nguyen's symptoms and signs are genuine and consistent with the MRI report. Mr Nguyen’s presentation seem entirely consistent with the examination finding and the work situation described by him. It is highly probable that his diagnosis is work-related and work is a substantial factor.”
Annexed to the ARD are a number of certificates of capacity, certifying the applicant as having no current work capacity due to injury sustained over the period of the applicant’s employment from 1980 onwards.

Dr Bentivoglio

The applicant relies on a medicolegal report prepared by neurosurgeon, Dr Peter Bentivoglio, dated 16 April 2021. Dr Bentivoglio saw the applicant with an interpreter.
Dr Bentivoglio took a history of the applicant working for the respondent for 39 years as a forklift driver. The work entailed a lot of heavy lifting.

Dr Bentivoglio also took a history of the onset of symptoms and noted the radiological investigations of the applicant’s spine:
“He has had a full spinal MRI undertaken on 29/8/2020 which showed multilevel degenerative disease in his cervical, thoracic and lumbar spine. He has spinal cord compression at the C3-C6 levels with myelomalacia changes. He had severe thoracic cord compression from T9-T12. He had significant myelomalacia changes. He also had a spinal canal stenosis in his lumbar spine at L4/5 and to a lesser degree at L5/S1.”
Dr Bentivoglio noted the T9 to T12 decompressive laminectomy performed in November 2020. It was noted that Dr McKechnie had also recommended decompressive surgery to the cervical spine.
Dr Bentivoglio performed an examination and made a diagnosis of persistent symptoms of cord myelopathy affecting the lower limbs despite the decompressive surgery and signs and symptoms of cord myelopathy affecting the upper limbs and hands.
Dr Bentivoglio recorded that there was no actual injury but commented:
“The job description has been extensive. He has done 39 years of heavy manual labour and a forklift driver. He has been expected to do a lot of heavy lifting and repetitive bending and twisting all through his work career.”
Dr Bentivoglio was asked to provide an opinion on causation and stated:
“I do believe his employment has been a substantial contributing factor to the development of the multilevel degenerative disease affecting his neck, thoracic spine and lumbar spine. He has been doing this sort of work for 39 years. His duties entailed heavy lifting and repetitive bending and twisting. The nature of his work has been the cause of the progressive development and degeneration of his cervical thoracic and lumbar spine. Anyone who does this sort of work for 39 years will get these degenerative changes.
…
The nature of the work that he performed was a forklift driver and also did a lot of heavy lifting and repetitive bending and twisting and he has been doing it for 39 years. I do not believe that this sort of excessive degenerative disease in his cervical, thoracic and lumbar spine would have developed unless he was doing heavy manual labour like he has been doing for the last 39 years.
If he had not done this work, I don’t believe this would have happened. His state of health before the injury was that he was normal.
Lifestyle has not been a significant contributing factor. He has only ever worked and he has never undertaken any recreational activities. I have no doubt in saying that his work has been a substantial contributing factor to the development and progression of the degenerative disease in his lumbar spine.”

Asked specifically whether the described employment duties were the main contributing factor to an aggravation/exacerbation of a degenerative condition or disease, Dr Bentivoglio responded:
“Undoubtedly there was pre-existing degenerative disease before 8/5/2018. This has been causing the symptoms that he is having. The described employment duties have been the main contributing factor to the cause of the degenerative disease in his cervical, thoracic and lumbar spine and the aggravation of this disease.”
Dr Bentivoglio gave the opinion that the applicant was incapacitated for any form of work for the next 6 to 12 months. The applicant would never return to pre-injury duties.
Asked to comment on a report repaired by the respondent’s medicolegal expert, Dr John Stephen, dated 17 November 2020, Dr Bentivoglio stated:
“With regard to Dr Stephen’s report, I disagree with him. I do believe his work has been a substantial contributing factor to the development of this degenerative disease in his cervical, thoracic and lumbar spine. If it was not for the sort of work that he was doing for the last 39 years I do not believe this degenerative disease would be as bad as it is now and not requiring the multiple surgical procedures that he is going to require on his spine in the not too distant future.”

Dr Stephen

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr John Stephen, dated 17 November 2020 and 15 July 2021.
In his first report, Dr Stephen said the applicant had been employed by the respondent for a little under 40 years. The applicant spent 10 years as a forklift driver. Although the applicant described some of his work activities as heavy, a job description contained in a report from Mr Timothy McKinnon, Safety and Training Manager, dated 23 September 2020 indicated that mostly it was not.
Dr Stephen performed an examination and reviewed two MRI scans. Dr Stephen diagnosed numbness and tingling in both feet together with unsteadiness due to spinal stenosis in the lower thoracic region with some contribution from foraminal stenosis at L4/5 and L5/S1.
Dr Stephen did not consider there was a relevant cervical condition apart from relatively mild stenosis at C4/5 with early myelomalacia.
Asked whether the applicant’s work duties were exposing him to relevant forces that could have contributed to his current symptoms, Dr Stephen said:
“I do not believe that Mr Nguyen’s work duties are contributory. They have not contributed to the current symptoms. His current symptoms are in relation to severe degenerative changes at several levels with spinal stenosis. They may in part be related to his smoking. They are not related to his work activities.”
Dr Stephen said he agreed with Dr McKechnie’s recommendation for thoracic surgery but said the operation was not the responsibility of the insurer.
In his supplementary report, Dr Stephen reiterated his previous views and said the degenerative change and stenosis were principally constitutional. With regard to the applicant’s work duties, Dr Stephen reiterated:
“Although Mr Nguyen described some of his work activities as heavy, the job description appears to indicate that mostly it was not. This job description was that quoted in the report of Mr Timothy McKinnon, safety and training manager at the Real Pet Food, dated 23/09/20.”
Dr Stephen said he and Dr Bentivoglio were in broad agreement as to the physical findings and diagnosis except that Dr Stephen did not think that the mild myelopathy in the cervical spine was contributing to any upper limb symptoms. Dr Stephen noted, however, that he and Dr Bentivoglio differed in the aetiology of the applicant spinal stenosis and concurrent myelopathy:
“Dr Bentivoglio states ‘he has done 39 years of heavy manual labour and a forklift driver. He has been expected to do a lot of heavy lifting and repetitive bending and twisting all through his work career’.
The job description I obtained and the classification that you have supplied in your letter to me, namely that of production team leader, supports work activities which, though sometimes heavy, were by no means continually so.”
Dr Stephen was asked whether he maintained his opinion that the applicant’s injury was not attributable to his employment with the insured. Dr Stephen responded:
“There are two major reasons why I maintain my opinion that the applicant's condition (there was no injury) is not attributable to his employment with the insured.
The first is that immediately above – namely the nature and conditions of Mr Nguyen’s work over the years.
The second is that the relationship between degenerative change, particularly the degenerative change described in Mr Nguyen's case which was largely that of spinal stenosis, and work activities, is by no means established. I have taken liberty of sending you the report of a meta-analysis which goes into this in some detail. To quote part of the conclusion of this meta-analysis ‘there is low or very low quality grade evidence between loading and disc height, disc bulging, osteophytes, Modic changes, Schmorl’s nodes and other endplate abnormalities’. It is these factors of disc height, disc bulging and osteophytes (and this would include the osteophytes associated with degenerative change in the facet joints) which are productive of spinal stenosis.
The authors also state under the heading of ‘Background’ the following – ‘furthermore, recent studies suggest that the structure of the spinal column, including intervertebral discs, adapt and may even benefit from greater routine physical loading’.
I have long been aware of the controversy concerning the relationship between heavy labouring work and spinal degeneration. I have observed over the years marked degenerative changes in sedentary workers and mild degenerative change in labourers. My own opinion inclines strongly toward specific injury producing specific damage as being the cause of ongoing pathology in those involved in heavy work activities.”
Dr Stephen provided citations for 137 articles said to support his conclusion.

Applicant’s submissions

Mr Hickey noted that the applicant claimed an injury to his cervical spine and thoracic spine with consequential scarring resulting from the nature and conditions of his employment in accordance with s 4(b) (i) and (ii) of the 1987 Act.
The applicant relied upon his statement as evidence of the cause of his thoracic and cervical injury. Mr Hickey noted that there was no real disparity between the medical experts with regard to diagnosis of the condition at the cervical and thoracic spine requiring surgery.
Mr Hickey referred to the description of his work duties set out in the applicant’s statement including driving forklifts. The applicant described difficulties with the forklifts’ suspension, being thrown up and down and from side to side, causing jarring to his spine. The applicant had to manually lift boxes, pull boxes from cages and perform bending and lifting.
Mr Hickey referred to the applicant’s evidence as to the onset of spinal symptoms.
Mr Hickey referred also to radiological evidence and evidence from the applicant’s general practitioner, Dr Nguyen, and his surgeon Dr McKechnie.
Addressing the opinions given by Dr Stephen, Mr Hickey noted that the job description provided to Dr Stephen suggested that the applicant was not continually involved in heavy work. Dr Stephen appeared to have been given the job description attached to the respondent’s Application to Admit Late Documents. That description gave no indication of the physicality of the work performed and provided little insight into how the work was performed. The job description was not an accurate description of the applicant’s duties. Dr Stephen did not engage with the applicant’s evidence as to his work duties. That was said to account for Dr Stephen’s view that the job was not continually heavy.
Dr Stephen expressed the view that the condition was principally constitutional but did not address whether there was an aggravation of that underlying problem by the applicant’s work duties for the purposes of s 4(b)(ii).
Mr Hickey referred to the history of the nature and conditions of the applicant’s work in
Dr Bentivoglio’s report. Dr Bentivoglio said that there was pre-existing disease. The described employment duties were the main contributing factor to the disease as well as an aggravation of the disease. This style of work over the long period in which it was performed was both the cause of the degenerative disease as well as the main contributing factor to an aggravation of that disease as time went on. Dr Bentivoglio found no work capacity as a result of the myelopathic feature in the limbs.
Mr Hickey submitted that Dr Bentivoglio’s opinion was detailed. He considered the applicant’s duties and gave a clear opinion on causation. Dr Bentivoglio’s report stood in contrast to Dr Stephen’s report. Dr Bentivoglio specifically disagreed with Dr Stephen’s view.
Along with the support provided by Dr Nguyen, Mr Hickey submitted that the applicant would succeed on the issue of causation. The applicant reported that he had been working for the same company since 1981. He stated that his employment required him to frequently lift weights up to 30kg. He was unable to recall any outside-of-work event that could cause him to have such a severe condition. The applicant’s symptoms and signs were genuine and consistent with the radiological evidence. The applicant’s presentation was entirely consistent with the examination findings and the work situation described by him to
Dr Bentivoglio. It was highly probable that his diagnosis was work-related and work was the main contributing factor to the condition.
Mr Hickey submitted that if the Commission accepted the applicant’s submissions on causation it would make orders for weekly payments, with credit for payments made and a general order for payment of the medical expenses claimed including the costs of and incidental to the two surgeries.

Respondent’s submissions

Mr Doak said the principal issue in the case was causation. There was no dispute as to the need for surgery or incapacity. The applicant had quite clear stenosis to the thoracic spine and cervical spine. The critical question was whether employment had caused that condition by an injury under s 4 of the 1987 Act.
The respondent relied upon the opinion of Dr Stephen. First, there was a dispute as to the accuracy of the applicant’s description of his work. That was said to be critical because it was the basis of both experts’ opinions. Dr Bentivoglio took a history of the applicant working for 39 years as a forklift driver doing heavy manual labour.
The applicant’s own evidence, however, referred to lifting “sometimes” when boxes fell off and “sometimes” pulling boxes. The applicant referred to seeing a doctor for lower back pain, which was not claimed in these proceedings. The boxes were “up to” 32 kg. No specific evidence regarding the actual weight and frequency of lifts was provided. The applicant’s evidence was not specific as to how often the heavy work was done or the period in which it was performed.
Mr Doak referred to the description of the applicant’s duties attached to the Application to Admit Late Documents. For a period of 19 years the applicant was a team leader. There was no indication that the applicant was performing any forklift driving or heavy lifting in that time. The applicant was a forklift driver until 2002 when he moved to supervisory roles. The evidence as to the applicant’s duties was not clear and there was doubt as to the accuracy of the history relied on by Dr Bentivoglio. The history taken by Dr Bentivoglio was not in accord with the applicant’s evidence or the evidence provided by the employer.
Mr Doak submitted that the Commission would not be satisfied that there was a proper foundation for Dr Bentivoglio’s opinion on causation. It was noted that the respondent did not bear the onus of disproving the applicant’s case. The applicant bore the onus and there was a real question mark about the underlying assumptions on which Dr Bentivoglio based his opinion. It was not open to the Commission to give Dr Bentivoglio’s opinion weight.
Mr Doak submitted that there were other problems with Dr Bentivoglio’s report.
Dr Bentivoglio described “repetitive” bending and twisting. The description of “repetitive” was not helpful and was not supported by the applicant’s evidence.
The statement that “anyone” who did this type of work for 39 years would have the same condition was described by Mr Doak as a “stretch” and an opinion which was contradicted by Dr Stephen. This was said to be a bare assertion lacking explanation or rational.
Mr Doak referred to the decisions in Makita (Australia) Pty Ltd v Sprowles[1], Rhoden v Wingate[2], and Hancock v East Coast Timber Products Pty Limited[3] with regard to expert evidence. Expert evidence was required to provide a satisfactory basis on which the Commission could base its findings. Mr Doak submitted that there was a serious question as to what weight should be attributed to Dr Bentivoglio’s opinion. The reasoning was missing. Mr Doak referred in this regard to the decision of Meagher J in Rolleston v Insurance Australia Ltd[4].
[1] [2001] NSWCA 305.
[2] [2002] NSWCA 165.
[3] [2011] NSWCA 11.
[4] [2017] NSWCA 168 at [32].
Mr Doak submitted that Dr Bentivoglio’s assertion that employment caused the degenerative disease in the applicant’s spine was contradicted by Dr Stephen. The reports relied on by
Dr Stephen suggested the contrary. The applicant was required to prove on the balance of probabilities that the particular pathology in his spine was causally related to work.
Dr Bentivoglio did not explain how he concluded that there was degenerative disease caused by work. Dr Bentivoglio did not explain how stenosis resulted from heavy lifting and bending.
Dr Stephen, on the other hand, made his opinion clear. The academic writings relied on gave weight to Dr Stephen’s opinion. It was not enough to make a bare assertion. Weighing the two opinions, Mr Doak submitted that the Commission would favour Dr Stephen’s opinion.

Mr Doak noted that reports had been provided from the treating neurosurgeon but none of those addressed the question of causation. Mr Doak submitted that it could be expected that something would have been put from Dr McKechnie to corroborate Dr Bentivoglio’s opinion.
Mr Doak noted that the applicant was seen by Dr Portek who commented that there was no obvious precipitating event to account for the applicant’s symptoms. Dr Portek did not identify that the applicant’s work would account for his symptoms. One would expect Dr Portek to make enquiries about that history.
A history of work duties was also not a feature of Dr McKechnie’s reports. The causal connection between the applicant’s work and his symptoms was only made by Dr Bentivoglio.

Mr Doak submitted that the Commission would not be satisfied that the applicant had discharged the onus of establishing injury.

Applicant in reply

Mr Hickey noted the reference to Makita (Australia) Pty Ltd v Sprowles[5], in requiring specificity of explanation as to how the duties accounted for the particular pathology. Mr Hickey noted that Dr Bentivoglio was a qualified neurosurgeon and obtained a history of forklift driving and heavy lifting from time to time over the years. Dr Bentivoglio described the presence of excessive degenerative disease. The MRI scans in evidence described a range of pathology, not simply cord compression or stenosis, of a kind which had been held in numerous cases before the Commission to have been caused or aggravated by mechanisms such as bending and lifting and standing from a prone position.

[5] [2001] NSWCA 305.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury for the purposes of s 4. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[6] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[6] [2008] NSWCA 246.
As identified by the parties, the principal issue in dispute in this case is the cause of the applicant’s spinal condition. There is little difference between the medicolegal experts,
Dr Bentivoglio and Dr Stephen, with regard to the diagnosis of the applicant’s condition. The respondent has confirmed that there is no separate dispute with regard to the reasonable necessity of the surgeries performed by Dr McKechnie or on the question of incapacity. The question requiring determination is whether the need for the surgeries and the applicant’s incapacity have resulted from an injury pursuant to s 4 of the 1987 Act.
The applicant relies on an injury falling within s 4(b) of the 1987 Act. The applicant’s expert, Dr Bentivoglio, has described the injury as both the contraction of degenerative disease as well as the aggravation of degenerative disease in the applicant’s spine, caused by the applicant’s employment duties, for the purposes of both s 4(b)(i) and (ii).
The respondent’s expert, Dr Stephen, has concluded that there was no injury as the applicant's condition was not attributable to his employment with the respondent.

The first basis on which the experts differ is as to the actual duties or tasks performed by the applicant in his employment with the respondent.
There is no dispute that the applicant was employed by the respondent for a long period of time, exceeding 37 years. On the evidence from the respondent, the applicant’s employment with the respondent commenced in November 1983. In December 2002, the applicant’s classification changed from “forklift driver” to “multiskilled forklift driver”. In 2006, the classification changed to “supervisor”. In 2009, the applicant was moved from the warehouse to the “can line” department. The applicant’s most recent classification was “production team leader”, although it is unclear from the email correspondence attached to the respondent’s Application to Admit Late Documents when the applicant commenced in that classification.
The respondent’s evidence therefore suggests that at least between 1983 and 2006, a period of almost 23 years, the applicant was employed in a role classified as a forklift driver or multiskilled forklift driver.
After August 2006, the applicant appears to have been in employed in supervisory or team leader roles. There is no indication in the evidence before me as to what the specific tasks of a “supervisor” were although there is a description of the applicant’s duties as a “production team leader”. The description of the duties of a production team leader addresses the skill level required to perform the duties of that role. It indicates that the applicant was required to work in multiple areas of the factory, oversee the operation of machinery on specific lines and lead process workers on a specific production line. The applicant had various management responsibilities including, ensuring outputs were met, managing communication, providing input to performance reviews, attending meetings and providing leadership on workplace health and safety issues.

What the description of the classification lacks is a detailed explanation of the particular daily tasks the applicant performed. In particular, it is not made clear whether the applicant was still involved in driving forklifts or moving boxes after August 2006. There is, however, some suggestion that the applicant was still involved in physical work by reference to being required to competently perform the typical tasks of a meat processer grade 4 and working in multiple areas of the factory.
This description of duties appears to have been provided to Dr Stephen prior to his supplementary report. In preparing his first report, however, Dr Stephen makes reference only to a report or job description prepared by Mr Timothy McKinnon, a safety and training manager, dated 23 September 2020. That report is not in evidence before me and its absence has not been explained. Dr Stephen gives no indication of the particular contents of that report, including which classifications or roles were described and over what periods.
Dr Stephen simply indicates that the job description appeared to suggest that most of the applicant’s work activities were not heavy.
Dr Stephen also appears to have taken some form of work history from the applicant. The history reported by the applicant is not, however, recounted in any detail. In so far as that history involved being engaged as a forklift driver for only 10 years, it appears inconsistent with the respondent’s other evidence. The applicant is reported to have said “some” of his work activities were “heavy”.
Dr Bentivoglio took a history of the applicant working for 39 years as a forklift driver. The applicant’s work was also said to entail “a lot of heavy lifting”. Dr Bentivoglio said he had been given an “extensive” job description although he did not set it out in detail in his report.
I note that the statement from the applicant relied on in these proceedings postdates
Dr Bentivoglio’s report. Dr Bentivoglio said the applicant was expected to do a lot of heavy lifting and “repetitive” bending and twisting all through his work career.
The applicant’s own evidence provides a relatively detailed account of his work tasks. The applicant said he was employed as a forklift driver, which involved moving pallets stacked high with boxes from one area of the factory to another. The applicant said he was sometimes required to pick up boxes that had fallen off the pallets but this only occurred around 10 times a week. The boxes weighed from 14 to 32 kg and had to be lifted from the floor to above head height to return them to the pallet. The applicant provided a detailed description of driving old and new forklifts. The applicant also described sometimes having to move boxes of meat by hand from corners which could not be reached by forklift. The applicant said he sometimes had to pull boxes of meat from cages. The applicant described doing a lot of bending and lifting in awkward spaces.

The applicant has provided a detailed account of the effect of driving forklifts on his spine. The applicant described driving around 10 different forklifts, three of which were old and had poor suspension. These caused a lot of jolting of the applicant’s body up and down. There were uneven areas in the factory floor including dips, cracks and holes in the concrete. The applicant described being thrown up and down or side to side in his seat, landing directly on his buttocks, causing a jarring of his whole spine.
The respondent submitted that there were inconsistencies between the applicant’s evidence and the history taken by Dr Bentivoglio insofar as Dr Bentivoglio described “repetitive” bending and twisting. Although the applicant describes doing a lot of bending and lifting in awkward spaces, I would be prepared to accept that the applicant’s evidence did not suggest that this was repetitive. Rather the performance of such manoeuvres is described by the applicant as occurring only “sometimes”.
Issue was also taken with Dr Bentivoglio’s history of “a lot” of the applicant’s work involving “heavy” lifting. The applicant’s own evidence as to his duties was criticised by the respondent as lacking specificity with regard to the frequency or periods over which the applicant was required to lift and carry boxes and the precise weight of the boxes. Whilst those criticisms may be apt, in my opinion, this lack of precision in the work history is not fatal.
In my view, it is significant that Dr Bentivoglio has recorded a history of forklift driving over the span of the applicant’s employment in addition to heavy lifting, bending and twisting. This is consistent with the applicant’s own evidence.
The applicant’s evidence and the history taken by Dr Bentivoglio of the applicant continuing to be involved in forklift driving notwithstanding his apparent classification as production team leader is consistent with the reference in Dr Portek’s January 2018 report to the applicant’s job as a forklift driver and using his right foot continuously whilst driving the forklift. Consistently with Dr Portek’s history, the applicant has specifically described not being able to feel his right foot and noticing symptoms in his right leg whilst driving a forklift in early 2017.
The applicant has also specifically stated that he was still doing forklift driving in 2018 when he returned to work after a period of six months of leave. The applicant’s evidence suggests that he was also continuing to perform manual work even after he returned from the period of leave. The applicant described being allocated lighter work moving cans rather than meat boxes about half the time. The applicant said he was still doing his old job the rest of the time.
There is, therefore, a consistency between the applicant’s evidence, Dr Bentivoglio’s history and Dr Portek’s report, as to driving forklifts and moving boxes of cans or meat throughout the entire period of the applicant’s employment with the respondent.
The description of the duties of a production team leader provided by the respondent lacks sufficient specificity as to the particular tasks performed to suggest that the applicant’s evidence as to the tasks he performed throughout the period of his employment is not reliable. Although the applicant might have had additional supervisory or team leader duties in more recent years, I am not satisfied that he was not also performing tasks such as forklift driving and moving boxes. The applicant’s evidence is not, in my opinion, contradicted by the evidence from the respondent in these proceedings.
On this basis, while I would accept that there are some inaccuracies or a lack of precision in Dr Bentivoglio’s history, particularly, insofar as it describes “repetitive” bending and twisting and “a lot” of heavy lifting, I am satisfied that he has taken a broadly accurate and complete history of the applicant’s work tasks.
In contrast, I am not satisfied that Dr Stephen’s opinion is based upon a history of the applicant’s work tasks which was consistent with the description set out in the applicant’s evidence. Dr Stephen appears to have understood that the applicant was a forklift driver for only 10 of his 37 years of employment and that his work was mostly not heavy.
The respondent has referred to a series of cases dealing with expert evidence. In Makita (Australia) Pty Ltd v Sprowles[7] to which both parties referred, Heydon JA observed:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.”[8]
[7] [2001] NSWC 305.
[8] At [64].
Applying this principle to the expert evidence before me, I am satisfied that the facts on which Dr Bentivoglio’s opinion was based were sufficiently like the facts as found by me. I am not satisfied that the facts upon which Dr Stephen’s opinion is based were sufficiently accurate.
This explains, in part, the difference of opinion between the experts as to the contribution of the applicant’s duties to his spinal condition. The experts have also expressed different opinions as to the potential for the duties of the kind performed by the applicant to impact on his spine. Dr Bentivoglio had no hesitation in expressing the view that those duties, which included both forklift driving and heavy manual work, had contributed to both the onset and aggravation of the degenerative disease in the applicant’s spine. Dr Stephen on the other hand, did not consider that the applicant’s condition was attributable at all to the nature and conditions of his work.
In forming his opinion, Dr Stephen relied on academic writings which suggested that physical load would not cause the significant degenerative disease shown at the applicant’s spine. I note, however, that Dr Stephen has not addressed whether such disease could be aggravated, accelerated or exacerbated by work such as sometimes bending, twisting and lifting boxes weighing between 14 and 32 kg.
Dr Stephen also does not engage at all with the applicant’s duties as a forklift driver. In particular he does not engage with the applicant’s evidence of driving forklifts for a period of some 37 years, including old forklifts with poor suspension, over uneven surfaces in the factory causing him to be thrown up and down and side to side resulting in a jarring of his spine when he landed on his buttocks.
Although I would be prepared to accept that Dr Stephen was aware that the applicant performed work as a forklift driver, his history suggests that it was performed over a period of only 10 years.
Insofar as Dr Stephen’s research suggested there needed to be specific injury producing specific damage to cause the kind of pathology shown in the applicant’s spine, he has not addressed whether the “jarring” of the spine described by the applicant when driving old forklifts over uneven surfaces would meet this criterion.
For these reasons, I consider that Dr Stephen’s opinion should be given less weight.
As noted by the respondent, however, it remains the applicant’s onus to establish that he sustained an injury on the balance of probabilities.
It is necessary, therefore, to address the other criticisms of Dr Bentivoglio’s reasoning highlighted by the respondent’s submissions. In particular, the respondent submitted that
Dr Bentivoglio did not explain how he concluded that the degenerative disease in the applicant’s spine was caused by work. The statement that anyone who performed the same type of work would have the same degenerative changes was described as a bare assertion lacking explanation or rationale.
Dr Bentivoglio, who is a qualified neurosurgeon, has given his opinion after taking a sufficiently complete and accurate history of the applicant’s work duties. Dr Bentivoglio referred to the radiological findings, performed an examination and made a diagnosis which was broadly consistent with the other evidence. Dr Bentivoglio described the degenerative disease in the applicant’s cervical, thoracic and lumbar spine as “excessive”. Dr Bentivoglio noted the absence of other significant lifestyle factors to explain the extent of the degenerative disease. Dr Bentivoglio was aware of the applicant’s smoking, which was identified by Dr Stephen as a possible contributing factor to the applicant’s condition. In this context, the opinion was given that the degenerative disease would not be as bad as it is now were it not for the sort of work the applicant had been doing for the last 39 years.
I am satisfied that Dr Bentivoglio is an expert in a relevant field of specialised knowledge. He has given an opinion based on his expert knowledge. He has identified the facts on which his opinion was based. Those facts are sufficiently like those suggested by the evidence before me as to provide a proper foundation for that opinion.
An expert does not have to “offer chapter and verse in support of every opinion”[9]. As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich[10]:
“[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”.
[9] See, for example, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89].
[10] [2005] NSWCA 152 at [170].
Dr Bentivoglio was entitled to use his general experience and knowledge in giving an opinion.
With regard to the respondent’s submission that Dr Bentivoglio should have explained how the particular pathology of stenosis had resulted from the applicant’s work, I accept Mr Hickey’s submission that radiological investigations reveal a range of degenerative pathology throughout the applicant’s lumbar spine. Dr Bentivoglio has provided an opinion that the pathology would not be so excessive had it not been for the applicant’s employment. That the applicant’s pathology is “excessive” or severe is confirmed by the evidence from
Dr McKechnie. Dr Bentivoglio has also found that the applicant’s degenerative disease was “aggravated” by his work duties.
Dr Bentivoglio’s opinion is broadly supported by the applicant’s general practitioner,
Dr Nguyen. Dr Nguyen has given an opinion that the applicant’s presentation was consistent with the work situation described by him. Dr Nguyen said it was “highly probable” that the diagnosis was work-related and that work was a “substantial contributing factor.”
I accept that Dr Portek and Dr McKechnie have not offered any opinion that the applicant’s work was causative of the condition diagnosed and treated by them. As the applicant’s treating doctors, I would not necessarily expect them to address legal causation in their reports to the applicant’s general practitioner. I draw no adverse inference from the applicant’s failure to obtain opinions on causation from Dr Portek or Dr McKechnie given the reliance on the opinions on causation from Dr Bentivoglio and Dr Nguyen.
I have noted that Dr Bentivoglio and Dr Nguyen have, in their reports, made reference to the applicant’s employment being a “substantial contributing factor” to the applicant’s spinal condition. That, of course, is not the test required for the purposes of s 4(b). The applicant is required to demonstrate that employment was “the main contributing factor” to the contraction or aggravation of a disease.
In AV v AW[11] Snell DP commented at [78]:
“The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”
[11] [2020] NSWWCCPD 9.
In State Transit Authority of New South Wales v El-Achi[12] Roche DP, considering the application of the test in s 4(b)(ii), said:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
[12] [2015] NSWWCCPD 71.
Having regard to the evidence as a whole, including the duration of the applicant’s employment; the nature of his work duties; the severe or “excessive” nature of the pathology; the absence of any other injury or significant factor to explain the extent of the disease; and Dr Bentivoglio’s opinion and reasoning, I am satisfied that employment was at least the main contributing factor to an aggravation, acceleration, exacerbation or deterioration in the course of employment of the degenerative disease in the applicant’s spine, if not also the contraction of that disease.
I am satisfied that the applicant has sustained an injury pursuant to s 4(b)(ii) of the 1987 Act to his thoracic spine and lumbar spine.
There is no dispute that the applicant has had no current work capacity from 10 September 2020 to date. I am satisfied that such incapacity has resulted from the injury found above. It follows that there should be an award for weekly compensation from 10 September 2020 to date and continuing pursuant to ss 36(1) and 37(1) of the 1987 Act on the basis of the agreed PIAWE figure of $1932.59, as periodically indexed pursuant to s 82A of the 1987 Act. The respondent is to have credit for any payments of weekly compensation already made.
There is also no dispute that the thoracic surgery performed by Dr McKechnie on 20 November 2020 and the cervical surgery performed by Dr McKechnie on 30 April 2021 were reasonably necessary. I am satisfied that the need for such treatment has resulted from the injury found above. There will be an order for the respondent to pay the costs of and incidental to both surgeries pursuant to s 60 of the 1987 Act.
To the extent that the applicant has incurred any other reasonably necessary treatment expense as a result of the injury above, there will be an order for the respondent to pay those expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.

[2021] NSWPIC 283

9 August 2021