Redpath v State of New South Wales (HealthShare NSW)
[2024] NSWPIC 249
•14 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Redpath v State of New South Wales (HealthShare NSW) [2024] NSWPIC 249 |
| APPLICANT: | Sharyn Redpath |
| RESPONDENT: | State of New South Wales (HealthShare NSW) |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 14 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant sought weekly payments of compensation, payment for spinal surgery and a general order for section 60 expenses arising from an injury occasioned by an aggravation to an underlying condition brought about by unergonomic workplace arrangements and an excessive workload; found there was no aggravation as alleged; Held – award for the respondent issued. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant’s incapacity and need for surgery did not arise from an injury in the respondent’s employment, either from unergonomic workstations or overwork from extended hours. The Commission orders: 2. There will be an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Ms Sharyn Redpath (the applicant) was employed by the State of New South Wales (HealthShare NSW) (the respondent).
On 6 October 2015 the applicant commenced employment as a contractor with the Ministry of Health as a senior property consultant.
In August 2016 the applicant became a permanent employee in the same position.
The applicant worked a seven day/35 hour week with the ability to take three days Flex leave in any six week timesheet settlement period. Her work comprised computer desk work and attending meetings which during Covid19 were completed online.
From September 2022 to May 2023 the applicant acted in the position of Manager, Asset Services.
The applicant ceased work on 3 May 2023 which is her alleged date of injury.
The applicant alleges an injury to her neck and back arising from the nature and conditions of her employment pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) being an aggravation, acceleration, exacerbation or deterioration of an underlying condition which has contributed to the need for surgery.
She has provided certificates in relation to her incapacity from Dr Martine Walker, her general practitioner, until 27 March 2024.
The applicant seeks payments of weekly compensation from 22 March 2022 and continuing pursuant to s 36 and s 37 of the 1987 Act.
The applicant’s agreed pre-injury average weekly earnings (PIAWE) was $2,659.46.
The applicant also seeks payment of medical expenses for surgery which has already taken place in the sum of $37,347 plus a general order pursuant to s 60 of the 1987 Act.
MATTERS IN DISPUTE
Causation is in dispute.
PROCEEDINGS BEFORE THE PERSONAL INJURY COMMISSION
Ms Grotte of counsel, instructed by Ms Abou-Karan of Turner Freeman Lawyers appeared for the applicant. Mr Grimes of counsel, instructed by Mr Gilmour of Hicksons Lawyers, 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 application to adduce oral evidence or cross examine the applicant or any other witness as to any factual dispute before Personal Injury Commission (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;
(b) Reply to ARD (Reply) and attached documents;
(c) Application to Admit Late Documents (AALD) dated 26/02/24 lodged by Turner Freeman Lawyers, and
(d) AALD dated 9 February 2024 lodged by Turner Freeman Lawyers lodged without objection.
The applicant’s evidence
The applicant’s medical history is critical to the determination of the issues before the Commission. It is extensive and complex. It is particularised in her statement[1]. I have set out below a shorthand summary of her evidence in this regard.
[1] ARD pages 2 to 5 paragraghs 16 to 38 inclusive.
a. She was diagnosed with bilateral Perthes disease of the hips and seven or eight years of age.
b. Throughout childhood, teenage years and early adulthood her hip pain persisted and she developed fluctuating levels of lower back pain.
c. Since 2008 her general practitioner Dr Walker or her colleagues have referred the applicant to physiotherapists and other specialists for chronic hip, back and neck pain.
d. Dr Alex Ganora, a musculoskeletal, rehabilitation and pain specialist, has treated her with medication, corticosteroid injections prescribed rest and low impact exercise.
e. On 3 June 2011 the applicant experienced severe pain when lifting her arms to wash her hair in the shower.
f. On 27June 2011 Dr Hsu performed a C5/C6 anterior decompression and cervical fusion.
g. The applicant considered the surgery to be successful. She returned to work in 2011.
h. In February 2012 some pain returned to her neck. She continued to consult Dr Hsu and Dr Ganora regarding neck, lower back and bilateral hip pain.
i. Between 2015 and 2018 she was stable and did not require treatment. In neck and back were fine.
j. In September 2018 the applicant started to experience “an unusual increase in pain”. It was widespread but more prominent in her neck and back. She consulted Dr Ganora who referred her for a whole-body bone scan.
k. On 12 December 2018 the applicant had a CT guided right L3 /4 facet joint block injection to the lumbar spine. This improved her right side lumbar pain at the L3/4 level but she continued to have pain on her right hand side and the mid-left lumbar region.
l. On 9 February 2019 Dr Ganora referred the applicant for a CT guided bilateral L5/S1 facet joint block injection because she had experienced relief from pain on the right side following the December 2018 injection.
m. Dr Ganora provided a note to the respondent advising them of the applicant’s complex musculoskeletal problems and a requirement to work at an ergonomic workstation with adjustable height desk.
n. On 18 March 2019 the applicant had CT guided bilateral L5/S1 facet joint block injections to her lumbar spine.
o. On 15 July 2019 the applicant had bilateral L4/5 facet joint injections to her lumbar spine.
The applicant was referred to Dr Charles H New, orthopaedic and spinal surgeon, Independent Medical Examiner (IME) who provided a report dated 18 October 2023.[2] He provided the following opinion regarding causation:
[2] ARD page 138.
“Causation
24. On the balance of probabilities there is a connection between the patient's employment and the lumbar and cervical presentation. The patient states that she had poor sitting posture, although there was no specific cervical or lumbar accident.
25. It is my opinion the patient's employment was a substantial contributing factor to her presentation.
26. The patient has had a history of cervical pain dating back to 2008 and low back pain prior to that while she was living in England.
27. The patient has had a pre-history diagnosis of cervical and lumbar spondylosis, and also a pre-history diagnosis of Perthe's disease which her employment has not been involved in, although her condition has been aggravated by issues related to her posture at work.
28. Her cervical and lumbar spondylosis is ongoing, despite her surgery and fusion. The areas not fused will have increased stress.
29. With regard to the Section 78 Notice of 13th September 2023, the insurer has stated that the patient does not have a total or partial incapacity for work relating to Section 33 of the Workers' Compensation Act, based on the opinion of Dr Moloney in his report of 13th July 2023.
I note that Dr Moloney opined there was no evidence of injury to the cervical or lumbar spine in the course of her employment. The patient states that due to the nature and conditions of her office, she did develop neck and back pain which eventually required surgery.
The patient has confirmed she was working very long hours. She had commissioned an ergonomic study which allegedly reported that the circumstances of her workspace were poor. Please refer to the Ergonomic Reports dated 28th June 2022 and 27th May 2019.
There is certainly no doubt that the patient had a long history of cervical and lumbar spondylosis. I note that this is referred to as a ‘constitutional’ origin.
The term constitutional is a colloquial term, often used in medicolegal reports. There is no medical basis for using that term, and it is not taught in surgical training or medical education for which I have extensive experience, both in surgical training and in university medical education, therefore I do not believe a constitutional cervical spondylosis or lumbar spondylosis is the correct term.
She has a pre-history of pathology in both regions. I believe it is reasonable to state that, but for the work conditions, she would not have presented to Dr Hsu as she has.
I concur with Dr Moloney stating that there are no specific index injuries to her cervical and lumbar spine, and that her history is consistent with an aggravation and acceleration of the pre-history to the point where her symptoms were severe enough to require surgical intervention.
In regard to Dr Peter Moloney's findings:
(a) I disagree with the use of the term constitutional.
(b) It is my opinion that her employment was a substantial contributor in aggravating her preexisting spondylosis.
(c) The nature and conditions of her employment did contribute to her deterioration.”
The applicant alleges the aggravation and exacerbation of pre-existing injuries as a result of unergonomic workplace stations and equipment[3], as well as staff shortages and inefficiencies which led to long working hours[4].These were outlined in her statement as footnoted.
[3] ARD pages 5 to 9 paragraphs 39 to 68 inclusive.
[4] ARD pages 9 to 10 paragraphs 68 to 71 inclusive.
The respondent’s evidence
The respondent relies on the report of Independent IME Dr Peter Maloney dated 13 July 2023. At that time he examined her she was taking Endone, Targin, Mobic, Sertraline, Promethazine, Doxylamine and Panadol Osteo.
Dr Maloney’s conclusions are best set out in the questions and answers contained in his report which are set out below.
“What is the diagnosis of her cervical spine and lumbar spine conditions?
Ms Redpath suffers with constitutional cervical spondylosis and lumbar spondylosis.
Is there evidence of an injury to her cervical spine and lumbar spine arising out of, or in the course of her employment? If so, was her employment a substantial contributing factor to the injury? Please note she has a sedentary position as a Finance Manager which she has been performing since October 2015.
On the basis of the history that I gained from Ms Redpath, there is no evidence of an injury to her cervical spine or lumbar spine arising out of or in the course of her employment. Her employment is not a substantial contributing factor to the condition.
Is the mechanism of injury consistent with the pathologies?
There is no injury or mechanism of injury that occurred during the course of her employment with a deemed date of injury of 03 May 2023.
Ms Redpath had problems with her neck and with her back for years leading up to that particular day on which the pain worsened and she was unable to continue at work.
There was no injury per se apart from the fact that she was working long hours and doing a lot of computer work. This would not, of its own cause the degree of cervical and lumbar spondylosis evident on her investigations. The occurrence of her pain at work is coincidental.
If there is no evidence of any injuries, do you believe she has aggravated or exacerbated underlying conditions for which her employment was the main contributing factor? Please provide sufficient justification.
There Is no evidence of any injury. I do not believe that she has aggravated or accelerated her underlying condition of cervical or lumbar spondylosls. Employment is not a main contributing factor. She has a long past history of cervical and lumbar spondylosis. She has had surgery carried out by Dr Brian Hsu in 2011 to her cervical spine and she has had a fusion operation carried out also by Dr Hsu to her lumbar spine in 2022. She has ongoing issues with her neck and ongoing issues with her back. These issues are constitutional in origin and do not have a genesis in the nature and the conditions of her employment.
Are there other non-work-related factors that could better account for her current symptoms such as her previous CS/6 ACDF, L3-L5 ATP interbody fusion, L3-L5 decompression and fusion, family history, adjacent segment degeneration, age-related degeneration and activities outside of the workplace?
She does not have any activities outside the workplace that would explain the nature of her problems. She does have constitutional degeneration in her cervical spine and in her lumbar spine and unfortunately, this is a fact of life for some people. Work is not a major issue in her problem. The symptoms and the previous surgeries that you have noted are the management of her constitutional problem over the years.
Do you believe a C3-C7 ACDF (stage 1) and a C3-T1 PCDF (stage 2) is an evidence-based treatment for her condition and reasonably necessary?
It is an evidence-based treatment for her condition. It is not reasonably necessary as a result of the nature and the conditions of her employment or an injury at work. In my discussion with Ms Redpath, I believe she does understand that this is the case.
Has Ms Redpath's employment with Department of Health NSW materially contributed to her need to undergo a C3-C7 ACDF (stage 1) and a C3-T1 PCDF (stage 2)? Please provide sufficient justification.
For the reasons expressed above, I believe that her employment with the Department of Health New South Wales Is not in any way responsible nor has It contributed to the need for the surgery.
Are there other treatments or less Invasive surgeries that would be more appropriate for her condition?
On balance, surgical intervention probably is a reasonable avenue for her to follow, however, it is not as a result of the nature and the conditions of her employment nor any injuries at work.
Do you believe any treatment for her lumbar spine is reasonably necessary and required as a result of a workplace injury, aggravation or exacerbation? Please provide sufficient Justification.
There is no evidence of injury to her cervical spine or to her lumbar spine. The nature and conditions of her employment have not contributed to her constitutional changes.
Does Ms Redpath currently have capacity for work? Please outline hours, days and restrictions if required.
Ms Redpath probably does have some capacity for work. She does report, however, that her pain gets worse during the course of the day and this occurs at home just as much as it occurs at work, so if she were to go back to work, she would probably be best suited to three to four hours in the morning and perhaps three days a week in non-consecutive days with a lifting restriction of 3-5 kg.
Please provide any further information to assist us determining liability for her
workers compensation claim and requested surgery.
I believe that the enclosures with your letter of request together with your background setting out problems prior to her deemed date of Injury of 3 May 2023, together with the history that I have provided above, which is similar to the history that you have offered, that her condition interferes with her work but that her work is not responsible for her condition.”
SUBMISSIONS
The applicant’s submissions
The applicant’s counsel submitted that the applicants unergonomic work conditions and workload were the main contributing factors to her injury and the need for surgery. The basis of the submission was that, despite the applicant’s long history of pain and neck and spinal difficulties, her condition has stabilised until the nature and conditions of her employment with the respondent aggravated her underlying vulnerability and caused the injury requiring surgery. It continues to do so. Counsel took the Commission through the clinical notes in support of this submission.
The respondent’s submissions
The respondent denies liability. Its s 78 notices set out its position on liability succinctly.
The s 78 notice issued on 13 June 2023 stated:
“We are disputing liability for the suggested C3-C7 spinal decompression and spinal fusion and C3 - T1 spinal decompression and spinal fusion surgery.
………………
Summary of the position
We do not believe that the claimed medical or related treatment is one of the listed types of medical or related treatment under section 59 of the Workers Compensation Act 1987.
We do not believe that the claimed medical or related treatment is reasonably necessary as a result of an Injury as required by section 60 of the Workers Compensation Act 1987.
Reasons for the decision
On 19 May 2023. QBE received your claim for injury resulting in muscular pain to your back, shoulder and arm as a result from excessive office work hours al the computer.
QBE received a request for treatment from Dr Brian Hsu on 23 May 2023 being a request for C3 • C7 spinal decompression and spinal fusion and C3 - T1 spinal decompression and spinal fusion surgery.
It is noted on your Certificate of Capacity that you have had previous spinal surgery.
On 31 May 2023 and on 2 June 2023 QBE sent some clarifying questions to Dr Brian Hsu, however no response has been received. As such QBE are declining the requested C3 • C7 spinal decompression and spinal fusion and C3 • T1 spinal decompression and spinal fusion surgery under section 59 and 60 of the Workers Compensation Act 1987.
QBE will review your request for treatment upon receipt of response to questions sent to Dr Brian Hsu.”
The s 78 Notice issued on 3 September 2023[5] stated:
[5] Reply page 100
“Summary of the decision
We do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.
Reasons for the decision:
On 19 May 2023, QBE received your claim for injury resulting in muscular pain to your back, shoulder and arm as a result from excessive office work hours at the computer. We note that you remain unfit from the alleged date of injury being 03 May 2023. QBE accepted liability for Cervical radiculopathy associated with
more generalised back shoulder and arm pain on 27 May 2023. QBE received a request for treatment from Dr Brian Hsu on 23 May 2023 being a request for C3 - C7 spinal decompression and spinal fusion and C3 - T1 spinal decompression and spinal fusion surgery.
On 31 May 2023 and on 2 June 2023 QBE sent some clarifying questions to Dr Brian Hsu, however the response received was inadequate, therefore the surgery was declined.
On 11 July 2023 you attended an Independent Medical
Examination with Dr Peter Maloney.
QBE accepted liability for your claim on 27 July 2023 pending the outcome of the Independent Medical Examination.
On 28 July 2023 QBE received the final report from Dr Peter Maloney.
Dr Peter Maloney reported that there is no evidence of an injury to your cervical spine or lumbar spine arising out of or in the course of your employment. Your employment is not a substantial contributing factor to the condition.
Dr Peter Maloney does not believe that you have aggravated or accelerated your underlying condition of cervical or lumbar spondylosis. Employment is not a main contributing factor.
Dr Peter Maloney reports that you have a long past history of cervical and lumbar spondylosis. He states the issues are constitutional in origin and do not have a genesis in the nature and the conditions of your employment.
We consider that all of the available evidence confirms that there is no evidence of an injury to your cervical spine or lumbar spine arising out of or in the course of your employment. Your
employment is not a substantial contributing factor to the
condition.
Accordingly, liability is disputed on the following basis:
QBE dispute that your injury is work related and as such, we are declining your liability for ‘Cervical radiculopathy associated with more generalised back shoulder and arm pain’ along with any
associated incapacity or medical expenses required for this injury as per sections 33, 59 and 60.”
Respondent’s counsel submitted that the proposition that the applicant’s condition was stable commencement of employment was inaccurate. Counsel also took the Commission through the clinical notes[6] where it is indicated that the applicant is being prescribed very strong pain medication from 2012 onwards. I will not detail the references here. Counsel submitted that the notes and the prescription pain medication does not support the applicant’s statement that her back and neck pain were fine.
[6] ARD page 874 onward.
There was significant treatment from the full spectrum of the applicant’s medical specialists referring to the continuation of pain and the need for significant drug use for pain relief. Counsel took the Commission through these references in the attachments to the ARD. There was also a significant absence of complaint regarding the workplace conditions relied upon by the applicant.
CONSIDERATION
In this application submissions can be put, relying on the support of the treating doctor’s clinical notes, for both the applicant’s and the respondent’s arguments.
On balance I am not persuaded by the submissions for the applicant seeking a finding that there has been an aggravation of the applicant’s underlying condition by her workplace arrangements and workload.
The applicant had very serious underlying neck and spinal problems when she was employed by the respondent.
Sadly, when the applicant gave evidence that she was “fine”, she was operating from a very low base.
I am satisfied and find that the applicant’s symptoms of pain in her neck and back, and the consequent necessity for surgery, arose from her underlying condition without any aggravation, acceleration, exacerbation or deterioration from the conditions of her employment.
I accept and rely on the opinion as to causation provided by Dr Maloney that “her condition interferes with her work but that her work is not responsible for her condition.”
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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