Rana v Life Without Barriers
[2022] NSWPIC 287
•14 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Rana v Life Without Barriers & Ors [2022] NSWPIC 287 |
| APPLICANT: | Rajiv Rana |
| FIRST RESPONDENT: | Marist Youth Care Limited |
| SECOND RESPONDENT: | Life Without Barriers |
| Member: | Jill Toohey |
| DATE OF DECISION: | 14 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim under section 60 of the Workers Compensation Act 1987 for cost of cervical spine discectomy and fusion; worker had accepted injury to cervical spine in 2013 while employed by the first respondent; whether injury resolved; worker had further symptoms in his cervical spine in 2020 while employed by the second respondent; worker woke one morning with stiff neck; no particular incident or event; whether worker sustained further injury in 2020 or continuation of symptoms; finding that the 2013 injury materially contributed to the need for surgery; symptoms did not resolve; symptoms in 2020 were continuation; chain of causation not broken; first respondent liable for the cost of treatment; award for the second respondent. |
| determinations made: | 1. 1. The claim for weekly payments is discontinued and the requirement to file a notice of election to discontinue is dispensed with. 2. 2. The applicant sustained injury to his cervical spine on 27 June 2013 arising out of or in the course of his employment with the first respondent. 3. 3. The applicant’s symptoms did not fully resolve following the injury on 27 June 2013. 4. 4. Award for the second respondent in relation to the claim that the applicant sustained injury arising out of or in the course of his employment with the second respondent. 5. 5. The applicant’s injury on 27 June 2013 materially contributed to the need for the anterior cervical discectomy and fusion proposed by Dr Pope. 6. 6. The proposed treatment is reasonably necessary treatment as a result of the applicant’s injury on 27 June 2013. 1. 7. The first respondent to pay the reasonably necessary treatment and associated costs of the treatment proposed by Dr Pope pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
1. Mr Rajiv Rana, who is the applicant in these proceedings, was employed as a youth worker by Marist Youth Care Ltd (the first respondent) on 27 June 2013 when he slipped and fell on a wet floor, injuring his neck and left shoulder. The first respondent accepted liability for his injury.
2. Mr Rana was off work for six to eight weeks following his injury. In that time, his doctor referred him to neurosurgeon, Dr Raoul Pope, who advised he should continue with conservative care. An injection in his neck gave him some relief but Mr Rana says he did not completely recover from his injuries. He returned on light duties, gradually working up to his pre-injury duties.
3. Mr Rana continued in his employment with the first respondent until his position was made redundant in 2018. Approximately two weeks later, he obtained part-time employment with Life Without Barriers (the second respondent). His position and duties with the second respondent were similar to those with the first respondent.
4. On some shifts while working for the second respondent, Mr Rana was required to sleep overnight at work. On 18 January 2020, he woke with a stiff neck. The pain increased over the next few days. In late January 2020, his general practitioner referred him for scans of his neck and left shoulder and a cortisone injection in his neck, and referred him again to Dr Pope.
5. Dr Pope ordered further scans and, ultimately, recommended Mr Rana undergo an anterior cervical discectomy and fusion.
6. Mr Rana lodged a claim for compensation with the first respondent’s insurer on the basis that he had suffered a recurrence, or “flare up” of his 2013 injury. The insurer denied liability and maintained that any further injury was the result of his employment with the second respondent.
7. The second respondent maintains that what happened in January 2020 was a recurrence or “flare up” of the 2013 injury, unrelated to Mr Rana’s employment with the second respondent.
8. Mr Rana commenced these proceedings by an Application to Resolve a Dispute (ARD) lodged on 7 April 2022 in which he claimed weekly compensation from 4 October 2021 and continuing. He also claimed medical and treatment expenses for past consultations and treatment, and for the surgery proposed by Dr Pope. He claimed his incapacity and need for treatment resulted from his injury on 27 June 2013. Alternatively, he claimed that he sustained injury in January 2020 by way of aggravation of his previous injury.
9. At a conciliation and arbitration hearing on 1 June 2022, Mr Rana discontinued his claim for weekly payments.
ISSUES FOR DETERMINATION
10. The parties agree that the issues remaining in dispute are:
a. (a) whether the treatment proposed by Dr Pope is reasonably necessary as a result of the injury on 27 June 2013 for the purposes of section 60 of the Workers Compensation Act 1987 (the 1987 Act);
b. (b) whether Mr Rana sustained injury to his cervical spine in January 2020 by way of aggravation of his 2013 injury within the meaning of section 4(b)(ii) of the 1987 Act;
c. (c) if so, whether the treatment proposed by Dr Pope is reasonably necessary as a result of that injury, and
d. (d) whether liability should be apportioned between the first and second respondents.
e.11. Neither respondent has submitted that the treatment proposed is not reasonably necessary for Mr Rana’s cervical spine. Rather, the issue is causation.
PROCEDURE BEFORE THE COMMISSION
a.12. Parties attended a conciliation conference/arbitration hearing on 1 June 2022. Mr Rana was represented by Mr James McEnaney of counsel, instructed by Mr Stephen Matthews. The first respondent was represented by Ms Lyn Goodman of counsel, instructed by Mr Sean Patterson. The second respondent was represented by Mr Fraser Doak of counsel, instructed by Mr Bradley Stringer.
b.13. 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
a.14. The following documents were in evidence before the Commission and considered in making this determination:
b. (a) ARD and attached documents;
c. (b) Reply lodged by the first respondent and attached documents, and
d. (c) Reply lodged by the second respondent and attached documents.
Oral Evidence
a.15. Neither party sought leave to adduce oral evidence or cross-examine any witness.
Mr Rana’s evidence
a.16. Mr Rana’s evidence is set out in written statements dated 24 September 2020 and 3 January 2022.
b.17. In his first statement, Mr Rana states that he commenced full-time employment as a youth worker with the first respondent around 2010. His duties involved looking after teenagers of various ages, doing case work, and assisting with social skills, living skills and the like.
c.18. On 27 June 2013, Mr Rana slipped in the kitchen at work. He recalls “landing on my left shoulder area” and feeling “an immediate onset of pain in my left upper arm, neck and back”. He was taken by ambulance to Mount Druitt Hospital from where he was discharged after several hours to the care of his general practitioner, Dr Steve Lok.
d.19. Mr Rana states that he was off work for approximately six to eight weeks. He returned to work on restricted duties, gradually increasing to full duties. While he was off work, Dr Lok referred him to Dr Raoul Pope, neurosurgeon, who advised he should try to persist with conservative care. He had an injection in his neck which he says gave him “some relief” but says he “did not completely recover from my injuries”. He returned to full duties around December 2013 “although my condition had not fully recovered”.
e.20. Mr Rana continued working for the first respondent through to 2018. During that time, he states:
“For the most part, I managed okay and did not have any serious exacerbations of my pain that prevented me from working however, I was still conscious of the pain and I was careful about what I did at work.”
a.21. In 2018, Mr Rana’s position at Marist Youth Care was made redundant when the first respondent lost its contract. Approximately two weeks later, he obtained part-time employment, three days a week, with the second respondent. He describes the work as “light”, involving duties similar to those with the first respondent. There was no “physically demanding work” involved.
b.22. Mr Rana was required to sleep overnight at the second respondent’s premises on two shifts. He states that, on 17 January 2020, he completed a normal shift and went to bed at 11 pm “without incident”. He woke the next morning with a stiff neck. He states:
“I confirm that there was no incident that led to an aggravation of my existing neck injury. It appeared to just be a flare up of my pain and I had hoped it would go away. I thought I just had a bit of a stiff neck.”
a.23. On or about 27 January 2020, when his neck pain had increased, Mr Rana saw his then general practitioner, Dr Alegandran Kanapathippilai, at the Lane Street Medical Centre. Dr Kanapathippillai sent him for an MRI scan and prescribed Panadeine Forte. He continued to experience pain going into his left shoulder and arm.
b.24. On or about 3 February 2020, Mr Rana had a cortisone injection in his neck which he says provided “some temporary pain relief”, as it had in 2013, but he had continuing pain and discomfort. An ultrasound of his left shoulder on 11 February 2020 confirmed there was no rotator cuff tear but some mild supraspinatus tendinosis and bursitis.
c.25. On 3 March 2020, Mr Rana saw Dr Pope again. Dr Pope reviewed a further MRI and recommended an anterior cervical discectomy infusion if his symptoms persisted.
d.26. Mr Rana states that, as he believed he had suffered a “flare up” of the pain from his 2013 injury, he lodged a claim with the first respondent’s insurer. He states:
“I do not think that the employment with LWB had contributed to my condition or the flare up in pain. There was nothing out of the ordinary that happened. There was no incident the night before I went to bed. I slept okay and it was not until I woke in the morning that I felt the pain in my neck.
…
… I cannot point to anything in respect of my employment with LWB that contributed to the increase in my neck pain.”
a.27. Mr Rana states that he has tried conservative options including cortisone injections, physiotherapy and medication, but they have not provided adequate relief and he wishes to undergo the proposed surgery.
b.28. In his second statement, Mr Rana states that, in September 2021, the second respondent took him off his roster after receiving a certificate of capacity restricting him to “no heavy lifting”. He was given administrative duties and started working in the office. He says he disagreed with this decision because his duties with the second respondent did not involve any heavy lifting.
c.29. Mr Rana states that his current general practitioner, Dr Eric Lim, referred him to spinal surgeon, Dr Bhisham Singh. At the time of his statement, he was awaiting a further MRI scan.
Dr Lok’s records
a.30. Dr Lok’s records show that Mr Rana visited him on the day of the fall in June 2013. Mr Rana reported he fell backwards at work and hit a cupboard on the ground. Dr Lok recorded he had mild tenderness in his neck and thoracic spine. He referred Mr Rana for x-rays and provided a WorkCover certificate of capacity.
b.31. Mr Rana saw Dr Lok several times throughout July 2013. On 5 July 2013, Dr Lok recorded that he was “improving now”. On 12 July 2013, Mr Rana was still having pain and was continuing with physiotherapy. On 19 July 2013, he still had a stiff neck and mild tenderness.
c.32. On 26 July 2013, Dr Lok recorded “getting pain down L arm 1 wk after accident”. He requested a CT scan, noting “lower neck pain ? L radiculopathy”.
d.33. On 2 August 2013, Dr Lok referred Mr Rana to Dr Pope and recommended he continue with physiotherapy. He saw Mr Rana several more times throughout August 2013. On 30 August 2013 he noted the results of an MRI and that Dr Pope had suggested a C6 nerve block.
e.34. On 6 September 2013, Dr Lok recorded “had perineural injection last Monday. only 5-10% better”. On 13 September 2013 he recorded that Mr Rana was “much better now, 80 to 85% better” and that he was to see Dr Pope again in October. On 20 September 2013 Dr Lok again recorded “much better now” and “no physio”.
f.35. The next relevant record was on 17 December 2013 when Dr Lok recorded “much better now, no symptoms now”.
g.36. On 5 February 2014, Dr Lok recorded that Mr Rana had seen Dr Pope on 14 January 2014 and “can resume [pre-injury] duties”.
Dr Kanapathippillia’s records
a.37. Records from Lane Street Medical Centre date from 20 November 2018. They show that Mr Rana saw Dr Kanapathappillai on 27 January 2020. Dr Kanapathapillai referred him for an MRI and recorded:
“neck and left arm pain P R P
for one week
had nerve compression 2013
cervical radiculopathy
?”
a.38. On 30 January 2020, Dr Kanapathapillai noted that the MRI had shown multilevel cervical canal stenosis and mild nerve irritation at C5/C6 level. His notes indicate that he referred Mr Rana for a CT guided cortisone injection.
b.39. On 8 February 2020, Dr Kanapathapillai referred Mr Rana for an ultrasound of his left shoulder, noting he had “left shoulder pain for the last few weeks”. On 11 February 2020, he recorded that an ultrasound of the left shoulder had excluded a cuff tear. He noted “mild supraspinatus tendonosis and associated bursitis”. On 12 February 2020, Dr Kanapathapillai recorded “neck and left shoulder pain” and “chronic pain”.
c.40. In detailed notes on 13 February 2020, Dr Kanapathapillai recorded that Mr Rana had injured his lower back, neck and left shoulder at work on 27 June 2013. He noted “even after discharge from the hospital his pain has not resolved”. He noted that Mr Rana “reported neck pain again on 27 January 2020” and “had similar pain in 2013”. He noted the results of the MRI on 28 January 2020.
d.41. On 27 February 2020, Dr Kanapathapillai referred Mr Rana to Dr Pope.
Workers Doctors records
a.42. On 18 November 2021, Dr Lim reported to Mr Rana’s solicitors that he initially presented on 19 October 2021 “following neck/shoulder injury(ies) sustained on Tuesday, 21 January 2020”.
b.43. Dr Lim noted that Mr Rana “previously injured his neck and shoulder in 2013 after he slipped over wet surface and fell. He had 2-3 months off work and returned on light duties gradually working back to pre-injury duties”.
c.44. Dr Lim took a history that, in January 2020 “after sleeping at work, Mr Rana woke up with neck and shoulder pain”. He had a cortisone injection for his neck in 2020 which provided “temporary relief” and Dr Pope had recommended cervical discectomy and fusion.
d.45. Dr Lim reported:
“In September 2021, he was taken off the roster after his employer received his COC that restricted him to no heavy lifting. He was placed onto admin duties and has started working in the office. His hours have been reduced to 20hrs a week. His neck and shoulder pain were aggravated as he was required to look at two monitors instead of one. He stopped working in October 2021 due to family issues and also because he was not enjoying his work.”
a.46. Dr Lim stated in conclusion that Mr Rana reported neck and shoulder pain after waking up following a night shift at work. Dr Lim said this had “occurred in the course of employment” and “work was not the main contributing factor for the injury”. He said that, upon reviewing his imaging, Mr Rana had “degenerative changes which directly relate to the previous imaging an injury of 2013. He said the work that he does “is non-physical, and at most requires him to lift light shopping. He did not report pain from this”.
b.47. Dr Lim said Mr Rana “has clear degeneration, with nerve root impingement, that is a recurrence that may be coincidental to him sleeping at work”.
Dr Pope’s reports
a.48. Three reports from Dr Pope around the time of the 2013 injury are in evidence.
b.49. On 27 August 2013, Dr Pope reported to Dr Lok that the MRI showed the C5/6 disc herniation, more towards the left side. There was “compression within the neural exit foramen but there was also compression at the C4/5 and C6/7 levels but to a lesser extent.” He said the symptoms in Mr Rana’s left arm were “most likely due to the C6 radicular component”. Dr Pope suggested he see an occupational physician to help with pain management and for advice about returning to work. If symptoms persisted despite ongoing physiotherapy, he felt Mr Rana was “heading towards an operation in the form of an anterior cervical discectomy and fusion or disc replacement”.
c.50. On 8 October 2013, Dr Pope reported to Dr Lok that a C6 periradicular block had given “excellent relief” and Mr Rana had not needed to see the occupational physician as he was back to pre-injury duties with lifting restrictions. There was no neurological deficit and he had not needed to take Lyrica. He said if Mr Rana’s symptoms deteriorated significantly he might need to have surgery sooner rather than later, but he thought it unlikely.
d.51. On 14 January 2014, Dr Pope reported to Dr Lok that Mr Rana had no neck pain except on some long days when he had stiffness. He was off all pain medications and physiotherapy, and he was back to pre-injury duties without limitations. Dr Pope said he had not arranged to see him again but would do so if he had a re-injury or exacerbation of symptoms.
e.52. Dr Pope next saw Mr Rana on 3 June 2020 and reported to Dr Kanapathippilai. He referred to the 2013 injury from which he said Mr Rana “recovered well” but he “had a new exacerbation on 17/1/20” in his new job which required him to sleep over on some shifts. He said Mr Rana “woke on that morning with pain and stiffness in the neck” and in his left shoulder and down the arm. Panadeine Forte and a cortisone injection had given only short-term benefit, and physiotherapy had been no help.
f.53. Dr Pope said a recent MRI showed a “central disc herniation at C5/C6 with foraminal stenosis and compression of the C6 nerve root”. He opined that “Mr Rana has a re-injury of the C5/C6 WorkCover injured disc with recurrent left C6 radiculopathy”. He recommended painkilling medication and said, given Mr Rana had failed a cortisone injection, he would recommend an anterior cervical discectomy and fusion if his symptoms persisted.
g.54. In a report to Mr Rana’s solicitors on 8 October 2020, Dr Pope said he had last seen Mr Rana in 2013, when his C5/6 disc herniation symptoms had settled. He did not see him again “until he had further exacerbations with similar symptoms” in 2020. He said Mr Rana “had a return of his similar symptoms” as in 2013. Dr Pope said:
“There was no particular event that occurred with the new job but [it] required him to stay and sleep on site … This was usually in an uncomfortable bed and surroundings. On 17 January 2020 he woke up in the morning with pain and stiffness in the neck to the retro-scapular zone, left shoulder pain radiating down the arm to the lateral forearm, wrist, middle and ring fingers, consistent with nerve root pain.”
a.55. Dr Pope reported that the recent MRI showed a disc bulge that was “more prevalent than the previous imaging with respect to the disc component” and which had worsened on the most recent MRI. He said the previous C5/6 disc herniation:
“… was reactivated by his new job particularly the fact that he had to stay overnight, sleeping in an uncomfortable bed which may have caused the reherniation of the C5/6 disc. Therefore the original injury in 2013 … is the inciting injury and this has had an exacerbation with the second job with respect to his uncomfortable sleeping arrangements. And also his duties as a cultural support worker.”
a.56. Apparently in response to questions put to him, Dr Pope agreed “that there was no particular incident which led to the recurrence of Mr Rana’s dics herniation and neck and left arm pain”. He said Mr Rana “had recovered fully from his original injury in 2013 with resolution of his neck pain with residual ongoing stiffness and complete resolution of his arm symptoms”. He said:
“Therefore he has sustained a second injury at the same level pathologic disc that originally occurred in 2013, therefore they are to cause aid of incidents or places or work locations [sic]. My opinion is that Mr Rana’s injuries were exacerbated by his employment with Life Without Barriers whereas the original injury that weakened the disc occurred with his employment with Marist Youth Care.”
a.57. Further:
“My opinion is that his original injury has caused the initial damage to the C5/6 disc. Even though that resolved with respect to most likely the size of the disc herniation, particularly the disc bulging of the annulus onto the nerve, the disc was still weakened and prone to further exacerbations or pathologic insults. This occurred with his new appointment with Life Without Barriers and the discal component, particularly the annular bulging causing nerve compression, was more pronounced the second time round. Therefore it is causally related to the initial injury with Marist Youth Care on 27 June 2013.”
Dr Bodel’s report
a.58. Dr James Bodel, orthopaedic surgeon, saw Mr Rana for assessment on 20 July 2020. He took a history of the 2013 injury, noting that Mr Rana made “steady progress” over a period of a few months and the “neck and left shoulder girdle improved but never completely recovered”. He noted that an MRI scan showed some disc pathology and a block injection was helpful but Mr Rana “never completely recovered”.
b.59. Dr Bodel took a history that Mr Rana “woke from sleep with pain and stiffness in the neck”. Further MRI scans showed “definite disc pathology at C6/7”.
c.60. In response to questions, Dr Bodel said the 2013 injury “did settle conservatively but was then re-aggravated on 17 January 2020”. He said:
“The initial injury occurred in 2013 and there was a further aggravation in January 2020. There is no additional accident or injury as far as I am aware in January 2020 but just a gradual increase in the symptoms in the neck.”
a.61. Dr Bodel diagnosed a disc rupture at C5/6 caused by the 2013 event “and aggravated by the subsequent event in January 2020”. He said he was satisfied there was a direct causal link between the injury in 2013 and the injuries currently seen. He said:
“As I have indicated above, I am satisfied that the original injury to the neck occurred on 27 June 2013 and there has been an aggravation, acceleration, exacerbation and deterioration of that disease process subsequently in January 2020.”
a.62. Dr Bodel said the aggravation had caused symptoms which had led to the need for surgery and he was satisfied there was a “direct causal link between the original injury in 2013 and his current complaints”. He considered the proposed surgery was reasonably necessary treatment.
b.63. In conclusion, Dr Bodel repeated that there was “no specific accident or injury in the current workplace” and it appeared this was “merely the aggravation, acceleration, exacerbation and deterioration of an established disc injury at C5/6 at the time of the accident”.
Dr Rowe’s report
a.64. Dr Roger Rowe, orthopaedic surgeon, saw Mr Rana for assessment on 1 March 2022 and reported to the second respondent’s solicitors.
b.65. Dr Rowe took a history of the 2013 injury after which Mr Rana returned to work and slowly increased to full duties. He took a history that Mr Rana had “some ongoing mild discomfort in the neck and left arm but his job was not physically demanding”. He noted Mr Rana’s statement of evidence that, following the 2013 injury, for the most part “he managed okay” and his pain did not prevent him working but he was still conscious of it and careful about what work he did.
c.66. Dr Rowe took a history that Mr Rana woke one morning at work in January 2020 with a stiff neck. There was “no accident or injury”. Mr Rana thought “he may have slept in the wrong position”.
d.67. Dr Rowe reported that an MRI on 6 January 2022 revealed “some further progress especially at the C5/6 level”. There was “degenerative change of a lesser extent at the C4/5 level and to a lesser extent at the C6/7 level”.
e.68. In response to questions, Dr Rowe said the pathology clearly evident on the MRI was related to the 2013 injury “as evidence indicates that he has not at any stage completely recovered from that injury”. He noted there was “no accident, incident or injury at his employment on 20 January 2020” and Mr Rana “simply awoke with a sore stiff neck”.
f.69. Asked whether he agreed with Dr Pope’s report of 20 April 2020 that Mr Rana suffered “a new injury in 2020”, Dr Rowe said he did not. He noted that Dr Pope had considered that Mr Rana “had recovered from his initial injury as he had gone back to unrestricted work”. However, he said Mr Rana was clear that his symptoms never resolved and he had had “ongoing symptoms and awareness ever since” even though he was able to undertake normal work and he was “cautious in regard to the work that he undertook”.
g.70. Further, Dr Rowe said, Dr Pope reported on 8 October 2020 that the 2013 injury caused damage to the C5/6 disc and that even though Mr Rana’s symptoms resolved, the disc remained weakened and prone to further exacerbation. Thus, he said, Dr Pope had accepted the pathology was the result of the initial injury, and the subsequent history from Mr Rana himself indicated this had never recovered completely.
h.71. Dr Rowe said it was likely Mr Rana would benefit from the proposed surgery.
Dr Singh’s report
a.72. On 18 November 2021, Dr Lim referred Mr Rana to Dr Bhisham Singh, orthopaedic surgeon. In a report dated 8 December 2021, Dr Singh referred to the 2013 injury and said Mr Rana’s neck and shoulder pain were “aggravated and he continues to have persistent pain”. He said Mr Rana “was required to look at two monitors at work instead of one, with repetitive neck movements”. He has been unable to work since October 2021 and had ongoing symptoms of neck and shoulder pain on the left side with radiation to the C6 and C7 dermatomes. He recommended a further MRI.
b.73. Dr Singh reviewed Mr Rana on 7 January 2022 and reported to Dr Lim that he had “significant structural pathology in his cervical spine”. He said he would arrange a face-to-face interview with Mr Rana to discuss an x-ray and MRI done that day. There are no further reports from Dr Singh in evidence.
SUBMISSIONS
a.74. Parties’ submissions were recorded and the transcript is available. The following records the principal points.
The applicant’s submissions
a.75. Mr McEnaney submits that Mr Rana had an accepted injury to his cervical spine in 2013. The first respondent maintains it never fully resolved but that is not Mr Rana’s evidence. A failure to report ongoing symptoms to his doctors should not count against him, rather it is to his credit that he returned to work. Mr McEnaney submits there is no reason to doubt his evidence that he had ongoing symptoms.
b.76. Mr McEnaney submits that, in January 2020, Mr Rana woke with a stiff neck. His Mr Rana’s evidence is that there was no particular incident, just a “flare up” of his symptoms.
c.77. Mr McEnaney refers to Ozcan v Macarthur Disability Services Limited and State Government Insurance Commission v Oakley and submits that Mr Rana’s case is on all fours, there was a weakening due to his initial injury and no further injury, simply a continuation of his symptoms.
d.78. With respect to Dr Pope’s report of 3 March 2020, Mr McEnaney submits that words such as “injury”, “recovery” and “reopening” are medico-legal in nature and must be read carefully in the context of his report overall. Mr McEnaney submits that, to the extent there is any ambiguity, his report should not be read as referring to a new injury.
e.79. Mr McEnaney refers to Dr Pope’s report of 8 October 2020 in which he said, when he reviewed Mr Rana on 14 January 2014, that he “still had some stiffness in the neck but the arm symptoms had resolved”. Mr McEnaney submits that Dr Pope did not say Mr Rana’s neck symptoms had fully resolved, consistent with Mr Rana’s evidence that they had not.
f.80. Mr McEnaney submits that Dr Pope’s opinion is clear that the symptoms in 2020 were causally related to the 2013 injury which had left him prone to exacerbation (Ozcan). Mr McEnaney submits that any suggestion by either respondent that the bed in which Mr Rana slept in January 2020 caused injury cannot be sustained and is irrelevant.
g.81. Mr McEnaney submits that Dr Bodel took an accurate history, noting there was no additional injury just a “gradual increase in symptoms in the neck”. Dr Bodel also took a history that Mr Rana never completely recovered from the 2013 injury.
h.82. Mr McEnaney maintains that the first respondent is liable to meet the cost of the surgery but, if I find that Ozcan does not apply, and if I conclude that Mr Rana suffered further injury while employed by the second respondent, I might conclude his later employment made a material contribution to the need for surgery and, the second respondent being the last employer, that it was liable. Alternatively, if I find a material contribution from both injuries, apportionment of liability between the first and second respondents pursuant to section 22 of the 1987 Act would be appropriate.
The first respondent’s submissions
a.83. Ms Goodman submits that it is clear that Dr Pope and Dr Bodel accepted that Mr Rana had largely recovered from the 2013 injury but that something happened in 2020, while he was employed by the second respondent, to cause an aggravation or exacerbation of that injury.
b.84. Ms Goodman submits that Dr Pope, who was the treating specialist, refers to an exacerbation in 2020. Ms Goodman submits something occurred in 2020 to make Mr Rana’s cervical spine symptomatic. Dr Pope refers to the MRI in 2020 which showed an extension of pathology. His reference to “re-injury” cannot be glossed over; clearly he considered something happened while Mr Rana was employed by the second respondent, and so does Dr Bodel.
c.85. Dr Pope reported on 8 October 2020 at Mr Rana’s disc herniation had settled. He returned to work with some symptoms in his neck but his left arm had resolved, that is, the radiculopathy had settled. Ms Goodman submits that the report on 14 January 2014 is significant. Dr Pope found no signs of C6 compromise, and Mr Rana had full range of movement. When he saw Mr Rana in March 2020, the MRI showed disc herniation, rather than disc bulge and compression as previously. Ms Goodman submits that, when Mr Rana left the first respondent’s employ, he was not complaining of the sort of symptoms he had in 2020 and Dr Pope specifically refers to “re-injury”.
d.86. Ms Goodman submits that Dr Pope says Mr Rana’s cervical spine was weakened and prone to insults. He and Dr Bodel agree that the 2013 injury is to some extent implicated but what occurred in 2020 was an aggravation or “re-injury”. Mr Rana had recovered and there was a re-injury that caused an extension of pathology.
e.87. Ms Goodman submits that Dr Bodel took a history that Mr Rana’s neck had never fully recovered but Dr Pope was in a better position to opine as to what the pathology in his neck was actually doing. Dr Bodel refers to a further aggravation in 2020, and his reference to a gradual increase in symptoms supports a finding of an injury within the meaning of section 4(b)(ii).
f.88. Ms Goodman submits that it is clear from Dr Pope’s and Dr Bodel’s reports that the need for surgery would not have arisen but for what occurred in 2020 in the course of Mr Rana’s employment with the second respondent.
g.89. Ms Goodman submits that only Dr Rowe attributes everything to the 2013 injury and I would not be satisfied of that on the evidence, especially as Mr Rana was not symptomatic again, after he saw Dr Pope in 2014, until 2020. In the meantime, he saw doctors but did not complain about his neck and he was able to perform his full duties. Ms Goodman submits that Dr Rowe’s opinion is flawed by the fact that he took a different view of the later MRI from Dr Pope.
h.90. Ms Goodman submits that, based on Dr Pope and Dr Bodel’s reports, I would find either that there was a new injury in 2020 or an aggravation of the previous injury, either way that the 2020 injury made a material contribution to the need for surgery. Ms Goodman submits that the second respondent was the last employer in time and therefore liable for the full cost of the surgery, alternatively that liability should be apportioned pursuant to section 22 of the 1987 Act.
The second respondent’s submissions
a.91. Mr Doak submits that the first respondent’s submissions are based entirely on a non-medical case. He submits that the first respondent comes to the matter without medical evidence and seeks to “cherry pick” from Dr Pope’s and Dr Bodel’s reports, overlooking what they actually concluded.
b.92. Mr Doak submits that Mr Rana’s evidence is clear that he continued to have symptoms from the 2013 injury. To succeed against the second respondent, I would need to find that he sustained an injury in 2020, but there is no evidence to that effect; Mr Rana simply went to sleep and woke with a sore neck. Mr Doak submits there is no factual or medical evidence to support a further injury and, if there was, I would need to find that Mr Rana’s employment with the second respondent was the main contributing factor to that injury.
c.93. In considering if there is any evidence to support a finding that employment with the second respondent was the main contributing factor to a further injury, Mr Doak refers to the less stringent factors in section 9B(2) relevant to whether employment is a substantial contributing factor and submits the evidence would not support those factors, let alone main contributing factor.
d.94. Mr Doak submits that I would not be persuaded by the first respondent’s submissions which rely on picking out words from Dr Pope’s and Dr Bodel’s reports. He submits there is no basis to reject Mr Rana’s evidence that he never fully recovered from the 2013 injury. Mr Doak supports Mr McEnaney’s submission that the doctors were not reporting by reference to legislation or case law, and their opinions about “re-injury”, “aggravation” and the like must be read as a whole. Mr Doak submits that where Dr Pope, for example, refers to a “new exacerbation”, he is saying no more than that the symptoms came on again.
e.95. With respect to Ozcan, Mr Doak submits that Dr Pope said the disc was weakened and prone to further insult. Nothing in the work that Mr Rana did in 2020 caused any insult and Dr Pope therefore concludes it the 2013 injury became symptomatic again for no reason other than just sleeping, because it was already weakened.
f.96. With respect to Dr Bodel, Mr Doak submits some caution is needed. Dr Bodel refers to the injury being aggravated by a subsequent event but, in Mr Doak’s submission, there was none, and Dr Bodel refers to a “gradual increase” in symptoms. There was no incident, no duties that Mr Rana was performing that could have been a main contributing factor to any aggravation while employed by the second respondent. Dr Bodel is clear there was a direct cause of link to the 2013 injury. Mr Doak submits that his reference to “aggravation” should be read as referring to an increase in symptoms and not to further injury, particularly given that Mr Rana’s symptoms never went away.
g.97. Mr Doak submits that Dr Rowe’s conclusion is consistent with Dr Pope and Dr Bodel, and the facts sit squarely within the decisions in Ozcan and Oakley.
The respondents’ further submissions
a.98. Ms Goodman refers to Dr Singh’s report of 8 December 2021 in which he refers to Mr Rana’s pain being aggravated by repetitive movements while using two monitors at work. Ms Goodman submits that Dr Singh provides an explanation which Mr Rana has not referred to.
b.99. In response, Mr Doak submits that it is not clear that Dr Singh has considered all the relevant material, and he makes no reference to the other doctors. He did not refer to Mr Rana waking in January 2020 with a stiff neck. Mr Doak submits that, if the first respondent wanted to make something of his report, it should have put on further evidence.
The applicant’s submissions in reply
a.100. In reply, Mr McEnaney submits that Dr Singh saw Mr Rana nearly two years after January 2020. Mr Rana’s evidence is that, in October 2021, he was placed on administrative duties which may explain the reference to the use of two computer screens. In any event, if the first respondent wish to make something of Dr Singh’s report, there is no medical evidence and the first respondent is clutching at straws.
b.101. Mr McEnaney submits that Mr Rana’s is a classic case within the principle in Ozcan.
CONSIDERATION
a.102. Section 4 of the 1987 Act defines “injury” as follows:
“‘injury’ –
(a)means personal injury arising out of or in the course of employment,
(b)includes a
‘disease injury’, which means—
i.(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 …”
103. 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).”
104. Section 22(1) provides that, if a liability for treatment expenses results from more than one injury to the worker, liability to pay compensation is to be apportioned in such manner as the Commission determines.
105. Mr Rana bears the onus, 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.
106. There is no dispute that the treatment proposed by Dr Pope is reasonably necessary treatment for Mr Rana’s cervical spine condition. Dr Bodel and Dr Rowe both consider it to be reasonably necessary treatment. The issue in dispute is one of causation, whether the need for treatment arises from Mr Rana’s employment with the first respondent, or with the second respondent, or whether he suffered injuries in the course of his employment with both, such that liability should be apportioned.
107. 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.”
108. In Murphy v Allity Management Services Pty Ltd, Deputy President Roche said at [58]:
“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).”
109. There is no dispute that Mr Rana sustained injury to his cervical spine when he slipped at work in June 2013. The first respondent maintains that his symptoms resolved, if not entirely then so much so that the 2013 injury is no longer relevant to his current need for treatment.
110. Mr Rana and the second respondent maintain that his symptoms did not resolve following the 2013 injury. For the reasons that follow, I find that the evidence supports that conclusion.
111. Mr Rana’s evidence is that the injection in his neck in 2013 gave him “some relief” but he did not completely recover from his injuries. He returned to full duties around December 2013 but says his condition “had not fully recovered”. He continued to work full time for the next five years but he says while, for the most part, he “managed okay” and did not have any serious exacerbations of pain which prevented him from working, he was still conscious of the pain and was careful about what he did at work. He describes his duties while employed by both respondents as similar and “light”. He performed case work and assisted with social skills, living skills and the like, with no “physically demanding work involved”.
112. The evidence indicates that, overall, Mr Rana recovered well from his injury. Dr Lok recorded on 20 September 2013 that he was “much better now” and not having physiotherapy. On 17 December 2013, he recorded that Mr Rana was “much better now, no symptoms now”. By 5 February 2014, he certified Mr Rana fit to resume pre-injury duties.
113. It is clear, and Mr Rana does not suggest otherwise, that he had recovered from his 2013 injury sufficiently to resume his full-time pre-injury duties and to continue performing them for the next five years. However, there is no reason to doubt his evidence that he continued to experience symptoms, even if not enough for him to report the symptoms to his doctor or seek treatment for them. The reports of his doctors over the years support his evidence.
114. The absence of reports to his doctor of continuing symptoms is not determinative and nor is the fact that Mr Rana was able to continue in his employment full time, given the nature of his duties. I do not consider that Dr Lok’s records in December 2013 that Mr Rana had “no symptoms now”, and in February 2014 that he was fit to resume pre-injury duties, are at odds with Mr Rana’s evidence.
115. Dr Pope reported on 8 October 2020 that Mr Rana “had recovered fully from his original injury in 2013” but this was qualified by the statement that he had “residual ongoing stiffness” in his neck.
116. Dr Bodel took a history from Mr Rana that he “never fully recovered” from the 2013 injury and Dr Rowe also took a history that he had “some ongoing mild discomfort in the neck and left arm but his job was not physically demanding”. He noted Mr Rana’s statement of evidence that, following the 2013 injury, for the most part “he managed okay” and his pain did not prevent him from working but he was still conscious of it and careful about what work he did. Dr Rowe evidently saw no reason to question his account.
117. I accept Mr Rana’s evidence, which has not been questioned by his doctors, that the 2013 injury never fully resolved.
118. The first respondent maintains that Mr Rana left its employ in 2018 and suffered further injury in January 2020 while employed by the second respondent.
119. Mr Rana’s evidence is that he was required to sleep overnight at the second respondent’s premises on two shifts. He states that, on 17 January 2020, he completed a normal shift and went to bed at 11 pm “without incident”. He woke the next morning with a stiff neck. He states:
“I confirm that there was no incident that led to an aggravation of my existing neck injury. It appeared to just be a flare up of my pain and I had hoped it would go away. I thought I just had a bit of a stiff neck.”
120. On or about 27 January 2020, when he was experiencing increased neck pain, Mr Rana saw Dr Kanapathippilai who referred him for an MRI scan and prescribed Panadeine Forte. Mr Rana continued to experience pain going into his left shoulder and arm.
121. On or about 3 February 2020, Mr Rana had a cortisone injection in his neck which he says provided “some temporary pain relief”, as it had in 2013, but he still had continuing pain and discomfort. An ultrasound of his left shoulder on 11 February 2020 confirmed there was no rotator cuff tear but some mild supraspinatus tendinosis and bursitis.
122. On 3 March 2020, Mr Rana saw Dr Pope again. Dr Pope reviewed the further MRI and recommended a cervical discectomy infusion if his symptoms persisted.
123. Mr Rana states that, as he believed he had suffered a “flare up” of the pain from his 2013 injury, he lodged a claim with the first respondent’s insurer. He states:
“I do not think that the employment with LWB had contributed to my condition or the flareup in pain. There was nothing out of the ordinary that happened. There was no incident the night before I went to bed. I slept okay and it was not until I woke in the morning that I felt the pain in my neck.
…
… I cannot point to anything in respect of my employment with LWB that contributed to the increase in my neck pain.”
124. The first respondent submits that the reports from Dr Pope and Dr Bodel in particular support the finding that there was a further injury to Mr Rana’s cervical spine in January 2020.
125. Ms Goodman refers to Dr Pope’s statements that Mr Rana “had a new exacerbation on 17/1/20”, “a “re-injury” of his earlier injury, and “further exacerbations”. Dr Pope also referred to “a second injury”. Dr Bodel referred to the injury being “re-aggravated” and “a further aggravation” in January 2020.
126. However, both doctors’ reports are unhelpful in some respects. Dr Pope suggested there had been an exacerbation “with respect to his uncomfortable sleeping arrangements” and “also his duties as a cultural support worker”. He states that Mr Rana’s condition was “exacerbated by his employment” with the second respondent.
127. Against that submission, Mr Rana has not suggested in his evidence that his sleeping arrangements were uncomfortable, only that he awoke one morning with a stiff neck. It is possible that he and Dr Pope had some discussion along these lines but, if Dr Pope considered how he slept played some part in further injury, he does not explain how. Further, it is not clear why Dr Pope referred to Mr Rana’s duties as playing some part in further injury. Mr Rana has not suggested they did, and the history taken by Dr Pope does not refer to his duties. There does not appear to be any basis for this statement.
128. Dr Bodel states that the original injury was aggravated “by the subsequent event” and he also describes “just a gradual increase in symptoms”. Although he refers to an “event”, Dr Bodel also states “there was no additional accident or injury” as far as he was aware of, and Mr Rana’s evidence, recorded by Dr Bodel, was it he just woke one morning with a stiff neck, rather than a gradual increase in symptoms.
129. I agree with the submissions made on behalf of Mr Rana and the second respondent that the doctors’ reports must be read as a whole. I accept they are writing medical rather than legal reports and not necessarily using precise legal language. Dr Pope, for example, refers to “reactivation” of the earlier injury. On the other hand it is fair to say that Dr Bodel, as an experienced independent examiner, would be aware of the implications of words such as aggravation and exacerbation.
130. Repeated references to a second injury and an aggravation cannot be dismissed lightly. However, Dr Pope and Dr Bodel (and Dr Rowe) confirm there was no particular incident that led to the recurrence in January 2020. Both say Mr Rana simply woke one morning with a stiff neck. If there was a further “injury”, I am not persuaded that the evidence would satisfy the factors in section 9B(2), let alone that Mr Rana’s employment with the second respondent was the main contributing factor.
131. Ms Goodman refers to Dr Pope’s report of 8 October 2020 that Mr Rana’s disc herniation had settled. She submits that his radiculopathy had settled and that Dr Pope’s report of 14 January 2014 is significant because Dr Pope found no signs of C6 compromise and Mr Rana had full range of movement. Ms Goodman submits that, in March 2020, the MRI showed disc herniation, rather than disc bulge and compression as previously. The difficulty with that submission is that Dr Pope has not commented specifically on the significance other than that there had been a recurrence of the disc herniation.
132. Dr Rowe noted that the MRI on 6 January 2022 revealed “some further progress especially at the C5/6 level” and degenerative change to a lesser extent at surrounding levels. He disagreed that there had been “a new injury” in 2020. He noted that Dr Pope said Mr Rana had recovered from his initial injury as he had gone back to unrestricted work but Mr Rana was clear that his symptoms never resolved and he had had “ongoing symptoms and awareness ever since”.
133. Dr Rowe noted that Dr Pope reported on 8 October 2020 that the 2013 injury caused damage to the C5/6 disc and that, even though Mr Rana’s symptoms resolved, the disc remained weakened and prone to further exacerbation. Thus, he said, Dr Pope had accepted the pathology was the result of the initial injury, and the subsequent history from Mr Rana himself indicated this had never recovered completely.
134. In my view, Dr Rowe gives the clearest explanation of what did – or did not – occur in 2020. Mr Rana’s cervical spine was weakened by the 2013 injury and prone to further exacerbation. That would not exclude further injury within the meaning of section 4(b)(ii) but all of the doctors agree there was no further “incident” or “event” other than that Mr Rana woke with a stiff neck. None of them point to anything in his employment with the second respondent that was the main contributing factor to further injury. References to an uncomfortable bed or his duties are not explained and do not accord with Mr Rana’s evidence.
135. Ms Goodman refers to Dr Singh’s report in which he referred to the 2013 injury and said Mr Rana’s neck and shoulder pain were “aggravated and he continues to have persistent pain”. He said Mr Rana “was required to look at two monitors at work instead of one, with repetitive neck movements” and had been unable to work since October 2021 and had ongoing symptoms of neck and shoulder pain on the left side with radiation to the C6 and C7 dermatomes. He recommended a further MRI.
136. I place no weight on Dr Singh’s report. As Mr McEnaney and Mr Doak point out, Mr Rana was moved to administrative duties around September 2021, well after January 2020 when his symptoms recurred. Dr Singh does not appear to have the full history and his report does not assist.
137. I do not accept there would have been no need for the proposed treatment were it not for Mr Rana’s employment with the second respondent. The possibility of the surgery was foreshadowed by Dr Pope in August 2013.
138. Considering all of the evidence, I am not persuaded to anything that occurred in 2020 while Mr Rana was employed by the second respondent materially contributed to the need for surgery. I find that Mr Rana’s symptoms continued following the 2013 injury. I am not persuaded that the chain of causation from the 2013 injury was broken. I am satisfied on the balance of probabilities that the 2013 injury materially contributed to the need for the proposed surgery and that the first respondent is liable to compensate Mr Rana for the cost of that treatment. I am not persuaded there is any basis on which to apportion liability.
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