Pandya v Specialist Diagnostic Services Pty Ltd
[2024] NSWPIC 278
•27 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Pandya v Specialist Diagnostic Services Pty Ltd [2024] NSWPIC 278 |
| APPLICANT: | Divyaben Nilesh Pandya |
| RESPONDENT: | Specialist Diagnostic Services Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 27 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant sought a finding that she was injured by the nature and conditions of her employment and that liability for the surgical intervention recommended by her treating specialist be ordered against the respondent; Held – the applicant suffered a neck injury as a result of the nature and conditions of her employment; surgical intervention is reasonably necessary and arises from the injury suffered by the applicant from the nature and conditions of her employment; award in favour of the applicant for the payment of section 60 expenses incurred for the treatment of an injury sustained to the applicant’s neck, including the payment for surgery and ancillary treatment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered a neck injury as a result of the nature and conditions of her employment throughout her employment including the lifting incidents which occurred on 2. The applicant’s underlying degenerative condition was aggravated, accelerated, exacerbated or deteriorated in the course of her employment. 3. The surgical intervention recommended by Dr Nair, the applicant’s treating specialist, is reasonably necessary and arises from the injury suffered by the applicant from the nature and conditions of her employment throughout her employment, including the lifting incidents which occurred on 17 April 2019. 4. The applicant’s employment with the respondent was the main contributing factor to her present incapacity. The Commission orders: 1. There will be an award in favour of the applicant for the payment of s 60 expenses incurred for the treatment of an injury sustained to the applicant’s neck in the employ of the respondent, including the payment for surgery and ancillary treatment recommended by |
STATEMENT OF REASONS
BACKGROUND
Ms Divyaben Nilesh Pandya (the applicant) was employed by Specialist Diagnostic Services Pty Ltd (the respondent). She commenced work with the respondent in April 2013 as a pathology collector. She was promoted to the position of Area Coordinator in 2018.
The applicant had no relevant medical issues prior to commencing employment with the respondent.
The applicant alleges that she experienced a gradual onset of pain as a result of the nature and conditions of her employment throughout her employment including heavy lifting incidents on 17 April 2019. After this heavy lifting she alleges that she experienced a significant increase in the pain in her neck into her shoulder and travelling down her right arm. She resigned her employment in December 2020.
Apart from unsuccessfully attempting a return to work for a month in 2021 for another employer in the same role, the applicant has remained unemployed and under medical treatment.
The applicant now wishes to proceed with the surgical intervention recommended by Dr Nair, liability for which is denied by the respondent.
MATTERS IN DISPUTE
There is no claim for weekly payments of compensation. The claim for determination before the Personal Injury Commission (Commission) is for payment of medical expenses, in particular the cost of surgery as proposed by the applicant’s treating surgeon.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Ross Hanrahan of counsel, instructed by Ms Jin of Lionheart Lawyers appeared for the applicant. Mr Murray of Integroe appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any dispute before the Commission.
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to ARD (Reply) and attached documents.
The applicants evidence
The applicant provided a very detailed statement outlining the development of her symptoms and her duties during the course of her employment from 2013 until 17 April 2019 and thereafter.[1] I have set out below her evidence regarding the events of 17 April 2019:
“20. Then by late February 2019, the pain was becoming unmanageable. I was experiencing constant pain in my neck which affected my right shoulder and arm. I was having difficulty driving. I went back to Dr Shetty and had a repeat MRI of my neck. The result showed bilateral neural exit foraminal narrowing at C5/6. I was suggested to continue my physiotherapy for chronic neck pain and radiculopathy symptoms.
21. Then my neck and right shoulder significantly deteriorated after I manually lifted printers at work on 17 April 2019.
22. On that day I needed to pick up a Brother printer from the Randwick collection room then delivered it to the Broadway room which was located inside of a shopping centre. Once I arrived at the car park of the shopping centre, I took the printer out of my car then started looking for a shopping trolley to move the printer. However, there was no trolley, so I carried the printer for around 5 – 7 minutes walking from the shopping centre parking to the Broadway room. As I was walking, I felt a sudden pain in my neck travelling all the way down my right arm.
23. After I delivered the Brother printer to the Broadway room, I was also required to collect the old Lexmark 410E printer from the room. I carried it back to my car with the support of a colleague, then I drove to the main lab based at North Ryde to drop it off. This time I had to lift and carry the Lexmark printer alone again.
24. I believe the Brother printer weighted between 10-15 kg, and Lexmark printer weighed between 15-20 kg.
25. Following that episode of heavy lifting on 17 April 2019, I noticed the significant increase in my neck pain, which also travelled down to my right arm. The next day the right side of my neck and shoulder became very stiff. I took anti-inflammatories and continued working through the pain. Around one week after, I visited my GP again and was given Lyrica. I was then referred to a Neurosurgeon, Dr Prashant Rao who later advised me that I might need a surgery.
26. Since the above incident, I have been undergoing extensive medical treatments.”
[1] ARD page 1.
In the face of lack of improvement with conservative treatment, Dr Nair, spinal surgeon, has suggested neck surgery. He states:[2]
“Mrs Pandya has guarding and restriction with movement of her cervical spine. She had pain radiating distally along her upper extremities.
…
Mrs Pandya has clinical and radiological evidence of cervical disc herniations with consequent foraminal stenosis.
…
Employment was the substantial contributing factor. She was asymptomatic prior to employment and has now developed intrusive symptoms consistent with the development of cervical degenerative disc disease.
…
The operative treatment is reasonable and necessary and is likely to improve function.”
[2] ARD page 50.
Dr Nair considered the reports of Dr Andrew Keller (Independent Medical Examiner (IME)), Dr Vidyasagar Casikar (IME) and Dr Nimeshan Geevasinga (treating doctor). He stated:
“I have noted the enclosed reports. I note Doctor Keller's opinion which is from the perspective of an occupational physician. Dr Casikar puts forward his opinion as an independent doctor, whose practise is exclusive to providing reports as opposed to clinical treatment. Doctor Geevasinga put forward his opinion as a neurologist as opposed to a surgeon. Ultimately there are divergences which are explained by the variance is in subspeciality training as well as professional roles.”
Dr Bodel, an IME has provided the following opinion:[3]
[3] ARD page 59.
“… They refer to Section 4 of the Act where the definition is contained but do not consider that any of this claimant’s ongoing injury is covered by the disease provisions of the Act which I totally disagree with. This claimant has considerable underlying previously asymptomatic degenerative disc disease which has become increasingly symptomatic over the period of her employment at Healius Limited from 2013 onwards. There is a significant substantial material change in pathology with the lifting incident that occurred at work on 17 April 2019 leading to the degenerative disc disease in the cervical spine and the rotator cuff pathology in the region of the right shoulder for which she needs treatment. Nerve conduction studies have been performed and Dr Patel found mild median nerve pathology at the wrist suggesting carpal tunnel syndrome. EMG studies were essentially normal showing no definite sign of radiculopathy. Bilateral facet joint injections at C4/5 were given with some temporary benefit. The MRI scan of the right shoulder shows evidence of what is said to be essentially a normal examination of the shoulder. An MRI scan of the head shows unremarkable intracranial study and another MRI scan of the cervical spine on 23 May 2019 indicates there is multilevel degenerative disc disease in the cervical spine in these films dated 23 May 2019 but no spinal cord or nerve root compromise.
An ultrasound of the right shoulder shows bursitis and tendonitis.
A CT guided injection into the C4/5 disc is also noted.
There is a report of an MRI scan of the brain and the base of the skull with no significant abnormality. Dr Kumar assessed her on 01 December 2021 for Mr Habib who is the Claim Officer at Healius Limited. He was of the view that there was no medical contraindication on physical grounds for this claimant to return to her full-time role. I disagree. She has:
‘rotator cuff pathology and clinical evidence of degenerative disc disease causing referred pain into her right arm which would make it very difficult for her to do the driving that she was required to do’.
Dr Casikar was of the view that she had a soft tissue injury to the right shoulder related to her employment which has not yet been adequately addressed. Her cervical spine is degenerative in nature.
Somatosensory evoked potentials (SSEP) were done on the right and left arms. There has been some abnormality but the exact cause of that is unknown.
She did see Dr Rao. He advised continuing conservative care including the referral for the SSEP program.
Dr Dias has assessed her on 12 November 2019.
The reports from Dr Herald and Dr Nair are noted and both have recommended surgery which she is keen to proceed with.”
He concluded:
“The diagnosis here is symptomatic degenerative disc in the cervical spine and a rotator cuff injury to the right shoulder.
….
There is a direct causal link between the nature and conditions of her work in general and the aggravation, acceleration, exacerbation and deterioration of the disease process being the degenerative disc disease and the rotator cuff pathology in the region of the right shoulder and the employment event that occurred at work on 17 April 2019 is also a substantial contributing by way of some further structural damage in the already degenerate diseased disc in the cervical spine and there is also an element of aggravation, acceleration, exacerbation and deterioration of the disease process through that period and that is the main contributing factor to that.
…
The two surgical procedures appear reasonably necessary based on the clinical presentation and there is a good chance that the neck in particular will be greatly improved by the appropriate surgery. The right shoulder is a little more guarded because there is an element of adhesive capsulitis present there.”
The applicant has decided to undertake the surgery and asks that the respondent accepts liability. She is keen to proceed with both surgeries as she is physically and mentally drained. Things have not settled down although she has tried very hard and modified her routine. She has lost confidence and is still having monthly physiotherapy sessions and fortnightly counselling with a psychologist. She is currently taking Lyrica, Palexia, Axit and Topamax.[4] She outlines her limitations.[5]
[4] ARD page 5.
[5] ARD page 6 paragraphs 48 to 56.
The applicant states that she wishes to move on and find improvement. Her evidence is set out below:
“58. After I resigned, another company, Medlab, offered me a new job. I worked there for around one month in another Area Coordinator role, however I stopped working in March 2021 because of the pain. Since then, I have been unable to work. Had the injury not occurred, I would have continued working as an Area Coordinator and progressing my career.
59. This whole thing took a heavy toll on me. I have been seeing a psychologist and psychiatrist. My pain and disabilities have been going on for many years and I am eager to return to my normal self. I have been trying very hard to return to my preinjury baseline functioning and to work. I am still motivated to return to work but I am frustrated because of my lack of progress.
60. I object to the insurer’s decision. There was nothing else I did besides the repetitive work from 2013 and heavy lifting on 17 April 2019 which caused the injury to my neck and right shoulder. I had never had any problems related to my neck and right shoulder in the past. I believe my current symptoms were caused by my work because my neck and shoulder pain started soon after I started my work with Laverty Pathology then they significantly got worse after that episode of heavy lifting on 17 April 2019.”
The respondent’s evidence
Healius denied liability for the reasons set out in lengthy correspondence dated
20 December 2021[6] which contains a review of the medical evidence. There is no purpose to be served by repeating those reasons here. The respondent relied upon the competing opinions of Dr Keller and Dr Geevasinga to deny liability and the divergence of medical opinion held by the applicant’s treating doctors. In relation to any possible psychological injury the applicant relied on the report of Dr John Roberts.
SUBMISSIONS
[6] Reply page 117 to 124.
The applicant’s submissions
The applicant’s counsel outlined the duties of the applicant in the course of her employment including the large number of patients seen in the course of the day and the twisting and bending involved in all of her duties, including restocking. He submitted that it is clear that the applicant was very committed to the proper performance of her duties and the completion of all of her tasks.
The clinical notes of the applicant’s general practitioner refer to the symptoms suffered by the applicant in the development of her condition. Although she does not lay responsibility on the respondent in these consultations, counsel submits that the notes are consistent with the applicant’s history as provided in her statement.
The respondent’s submissions
The respondent submits that the applicant’s condition most likely predated her employment with the respondent. In support of this submission the respondent refers to the clinical notes of her general practitioner which note her advice that this condition occurred in 2012, not 2013 as indicated by the applicant. The respondent notes a similar inconsistency in the history obtained by Dr Rao.
The respondent also submits that the applicant did not attribute responsibility for her condition to the respondent when seeking treatment from her general practitioner. She sought treatment but not attribute responsibility. Counsel submits this is inconsistent with the applicant’s history of a gradual onset and acceleration of symptoms whilst at work.
In summary the respondent submits that this is an application with a complicated medical causation issue involving conflicting medical opinions and that in these circumstances the Commission would have difficulty in finding injury in the course of employment or that the recommended treatment was reasonably necessary.
CONSIDERATION
The applicant has a history of commitment to the pursuit of conservative treatment to improve her situation. Her evidence is that she has exhausted her capacity for pursuing such treatments and wishes to take the next step and pursue surgical intervention on the recommendation of her treating specialists.
The applicant’s credibility regarding the development of her symptoms from 2013 to 2019 and the worsening of her symptoms after the lifting of printers on 17 April 2019 has not been traduced in any fashion and I accept her evidence in all respects.
I am not persuaded that the applicant’s failure to attribute responsibility when consulting her treating general practitioner and others is significant.
I am not persuaded that the applicant experiencing symptoms when performing domestic tasks such as breadmaking has significance other than those tasks being an example of what pain can arise when she performs movement of that kind.
I am not persuaded that the mention of dates earlier than 2013 in the notes of the treating doctors, being the dates of a possible earlier onset of neck stiffness or pain, is significant. The applicant was not at that time attributing responsibility to the respondent, and in any event, there was no need for her to be entirely accurate, even if the doctor’s notes were reliable.
I have considered the conflicting medical opinions provided by the parties. Posture as a contributing factor is insufficient to persuade me to reject the opinion of Dr Nair. The fact that medical opinion differs in a particular diagnostic circumstance is not sufficient on its own to reject the opinion of the treating specialist when there is no persuasive reason to doubt the honesty and history of the injured worker.
The medical evidence in this application is complex. However, complexity or a divergence medical opinion, is not a sufficiently persuasive reason in the circumstances of this application to deny the applicant the possible benefits of treatment recommended by her specialists treating doctors. Whilst there are different diagnoses provided, I have determined to accept the medical opinions proffered by the applicant’s treating doctors and the IME
Dr Bodel.Psychological injury is not claimed. However, Dr Roberts (IME) notes the markedly different opinions expressed by respected specialists and concludes that if it is determined that there is no physical basis for the applicant’s disorder she must be malingering or have developed a conversion disorder.
I wish to make it clear that on the material before the Commission there is no basis for concluding that this applicant is malingering.
I am satisfied that the applicant suffered a neck injury as a result of the nature and conditions of her employment throughout her employment including the lifting incidents which occurred on 17 April 2019.
I am satisfied and find that the surgical intervention recommended by her treating doctor,
Dr Nair, are reasonably necessary and arise from the injury suffered by the applicant to her neck arising from the nature and conditions of her employment throughout her employment including the lifting incidents which occurred on 17 April 2019.I am satisfied and find that the applicant’s underlying degenerative condition was aggravated, accelerated, exacerbated or deteriorated by the nature and conditions of her employment with the respondent.
I am satisfied and find that her employment with the respondent was the main contributing factor to her present incapacity.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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