Saini v Ampol Retail Pty Ltd
[2022] NSWPIC 11
•10 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Saini v Ampol Retail Pty Ltd [2022] NSWPIC 11 |
| APPLICANT: | Rajiv Saini |
| RESPONDENT: | Ampol Retail Pty Ltd |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for compensation pursuant to section 60 and lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to disputed cervical and lumbar injury due to nature and conditions of employment; adequacy of evidence of employment duties; whether correct test applied by applicant’s doctors; whether opinions explained; Held - applicant sustained injury to his cervical spine and lumbar spine pursuant to section 4(b)(ii) of the 1987 Act; general order for section 60 expenses; matter remitted to President for referral to a Medical Assessor. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to his cervical spine and lumbar spine due to the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. |
| ORDERS MADE: | 1. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses resulting from the injury pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or valid Medicare Notice of Charge. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 2 June 2020 Body parts: Cervical spine Method: Whole Person Impairment 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments, and the document attached to the Application to Admit Late Documents lodged by the applicant on 5 October 2021. |
STATEMENT OF REASONS
BACKGROUND
Mr Rajiv Saini (the applicant) was employed by Ampol Retail Pty Ltd (the respondent) as a store manager. The applicant claims to have sustained an injury to his cervical spine and lumbar spine due to the nature and conditions of his employment with the respondent.
Liability for the injury was disputed by the respondent’s insurer in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 24 July 2020, 11 August 2021 and 21 September 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 27 September 2021. The applicant seeks lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and incurred s 60 expenses.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine and/or lumbar spine as a result of the nature and conditions of his employment with the respondent as alleged, pursuant to s 4 of the 1987 Act;
(b) the applicant’s entitlement to incurred s 60 expenses as claimed, and
(c) the applicant’s entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 25 November 2021 by teleconference. The applicant was represented by Mr Craig Tanner of counsel, instructed by Mr Fady Dous. The respondent was represented by Mr Fraser Doak of counsel, instructed by Mr NicoIas Totaro. Representatives from the insurer were also present.
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
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) document attached to an Application to Admit Late Documents lodged by the applicant on 5 October 2021.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements made by him on 1 March 2021 and 15 September 2021.
In his first statement, the applicant said he was employed by the respondent initially as a customer service attendant then as an assistant manager prior to being employed as a store manager for approximately five years.
The applicant described his duties as including completing office paperwork, placing orders, deliveries, cleaning the shop and forecourt, pushing and emptying cages, stock filling, emptying milk crates and picking and packing milk in fridges. The applicant handled beverages and liquor boxes. The applicant was responsible for the day-to-day operations of the store.
The applicant was overseas between March and 19 May 2020. When the applicant returned, the labour hours of the store were reduced. This made it harder to manage store operations. Due to the change, the applicant was standing at the counter for eight to nine hours a day. The applicant was required to pick up additional boxes, milk crates and empty liquor pallets and push cages. The applicant had more responsibilities due to the labour cuts.
Whilst managing the shop, the applicant also had to complete orders on a laptop. The applicant would be standing and looking down to the laptop screen as he was not able to sit down. The constant use of the counter and looking down at the laptop caused pain in the applicant’s neck.
On 2 June 2020, the applicant was standing for long hours, moving boxes and cleaning when he felt an unbearable and sharp pain in his lower back and neck.
The applicant consulted his general practitioner, Dr Madan, who referred him for a CT scan. The applicant experienced symptoms in his shoulder and finger joints due to the issues with his neck.
The applicant returned to work and was visited by his business manager. The applicant advised that due to the store’s reduced labour hours he was struggling to maintain the shop and manage his injury. The applicant felt he was not provided with support or acknowledgement and had to keep standing and picking up heavy loads without assistance.
On 11 August 2020, the applicant consulted orthopaedic surgeon, Dr Bhisham Singh. Dr Singh recommended a course of cortisone injections. An injection to the applicant’s cervical spine was performed on 31 August 2020 and an injection to the lower back performed on 1 September 2020. The applicant had no relief from these injections.
In October 2020, Dr Singh recommended that the applicant undergo physiotherapy for a period of three months. The applicant undertook physiotherapy twice per week.
In his subsequent statement, the applicant provided further detail about his employment duties:
“My duties included but were not limited to a large amount of bending and lifting of items weighing up to approximately 20 kilograms. I was employed in this role undertaking the same physically strenuous duties for approximately 7 years.”
The applicant said that prior to his employment with the respondent he did not have any pain in his cervical spine or lumbar spine.
The applicant said there had been no improvement in his symptoms. The applicant was using gabapentin to manage his pain. The applicant did not find physiotherapy beneficial.
The applicant underwent further steroid injections on 29 June 2021 and on 30 June 2021. This provided relief for approximately one to two months.
Job description
An Ampol Job Dictionary, dated October 2020, attached to the ARD, describes the duties of a store manager and assistant store manager as including customer service, handling payments, cleaning, accepting deliveries, restocking, baking, making coffee and a number of other duties. The physical requirements were described as follows:
“• Standing: Frequent
• Walking: Frequent
• Running: Rare
• Stair climbing: Rare
• Sitting: Frequent
• Bending/stooping: Occasional
• Squatting: Occasional
• Reaching below waist level: Occasional
• Reaching to shoulder level: Occasional
• Reaching above shoulder level: Rare
• Trunk rotation: Occasional
• Repetitive forearm, hand and finger movements: Rare
• Manual dexterity & handling: Frequent
• Lifting floor-waist (10kg): Rare
• Lifting above waist level (10kg): Rare
• Carrying: Occasional
• Push/pull: Occasional
• Exerting force in an awkward posture: Rare”
Treating medical evidence
General practitioner, Dr Eric Lim, prepared an initial assessment medical report in relation to the injury on 3 August 2020. Dr Lim took a history of injury as follows:
“On Tuesday, 2 June 2020 Mr Saini reported that whilst at work he suffered a Neck, elbow and back injuries after increasing the work load due to COVID-19. He reported that his job at Caltex involved repetitive twisting, bending and lifting. He has difficulties to cope with the change of management. He reported the injuries on 2/6, since then he has being harassed by BM regarding his performance until 28/07. The company asked him to take leave until he was better.”
Dr Lim recorded that the applicant’s symptoms included neck pain and stiffness, bilateral shoulder pain, bilateral elbow pain and weakness, lower back pain and numbness down to the bilateral feet.
Dr Lim diagnosed:
“CervicaI Spine Radiculopathy, C6/7 stenosis with possible right C7 nerve root compression (CT); Bilateral Elbow Strain; Lumbar Spine Radiculopathy, L4/5, L5/S1 bulging disc with foraminal stenosis, L5/S1 disc height reduction (CT).”
Dr Lim gave the opinion that the applicant had sustained injuries to his neck, elbow and back due to his physically demanding duties at work.
Orthopaedic and spine surgeon, Dr Bhisham Singh prepared a report, dated 11 August 2020, in which he took a history as follows:
“He works as a store manager for Caltex, and his work involves repetitive bending, using a console and looking downwards, lifting and bending. He has had back pain in the past but this has subsided with conservative treatment. During the coronavirus pandemic, there was a staff shortage as decided by the company that he works for, and as a store manager he was doing extra work during the day. There is a history of prolonged standing, looking down at his laptop while standing up, lifting milk crates and doing other ordered sundry jobs all involving repetitive bending, twisting and lifting.
He suffered increasing lower back pain on 2 June 2020, and by this time he also noted that he had pain in the neck, going across his shoulder blades and into his hands. He has pain in the shoulder blade area and both forearms with pins and needles in both hands in the C7 distribution. In the lumbar spine he has lower back pain which radiates to both buttocks and the left calf. He has pins and needles in the feet.”
Dr Singh made a diagnosis of disc degeneration disc bulging at C6/C7 with bilateral foraminal stenosis worse on the right side. In the lumbar spine, the applicant had L5/S1 and L4/5 disc bulging with impingement upon the S1 traversing nerve root. Dr Singh said,
“His symptoms have been aggravated by his more recent repetitive injuries which he brought to the attention of the employer on 2 June 2020.”
The applicant was noted to be claustrophobic and unable to have an MRI scan. Dr Singh said the CT scan images before him were satisfactory and revealed that the applicant had neural compression. A trial of injections to the lumbar spine and neck was recommended.
On 27 August 2020, Dr Madan prepared a report for the insurer. Dr Madan recorded a history as follows:
“In June Rajiv presented with low back pain radiating to bilateral thighs up to his heels. Rajiv also reported neck pain radiating to the middle 2 fingers and headaches. … In the past Rajiv reported having back pains since the last five years off and on which he stated was due to his job tasks involving repetitive heavy lifting and prolonged standing. Rajiv reported working at Caltex since last seven years.”
Dr Madan gave the opinion:
“I am of the opinion that Rajiv has sustained injury due to repetitive use and lifting at work and prolonged standing over last five years. He has also reported previous work related injuries. In 2015, Rajiv had Spinal CT steroid injection by Dr. Craig at Norwest. He reported temporary relief. The recent onset was an acute on chronic exacerbation of pain. Rajiv also saw a Chiropractor in the past. Reported temporary relief.
Rajiv is too young to have age related degenerative changes. He is only 43 [not 44 yrs old as mentioned in the specialist report]. The CT report stated: ‘Right paracentral disc protrusion at L5/S1 level with impingement of right S1 nerve root and partial impingement of left S1 nerve root. Mild canal stenosis centrally at L4/5 level.’ I do NOT agree that these changes are age related. Also, the CT report clearly Mentions Disc Prolapse with Impingement. His radiological findings and presenting clinical symptoms are correlated and are suggestive of radiculopathy and not suggestive aged related changes.”
On 29 September 2020, Dr Singh noted that the applicant had undergone an injection to the lumbar spine on the left side at L5/S1 and a cervical injection which gave him significant relief of symptoms during the anaesthetic phase. This was said to be of diagnostic importance.
Dr Singh noted that the applicant’s pain had returned. The applicant had neck pain with pins and needles in the C7 distribution from the C6/7 disc bulging and foraminal stenosis. In the lumbar spine, the applicant had pain and sciatica.
On 27 October 2020, Dr Singh reported that the applicant did not demonstrate significant weakness or numbness in the upper or lower limbs. Functionally, the applicant was not too bad and could persist with conservative treatment including exercises. The applicant was again noted to be apprehensive about having an MRI scan.
Dr Lim prepared a report for the applicant’s solicitors on 21 August 2021. Dr Lim gave the opinion:
“Mr Saini has clear pathology on CT scans, which are not refuted by Dr Miniter, and are confirmed by Dr Singh, and Dr New. The findings on the scans, at the very least are consistent with an injury which has arisen in the course of employment. Considering his partial recovery during the course of his treatment, l would consider that he had underlying changes which have been aggravated. This aggravation has partially recovered, but not completely.
For the above reasons, I do not agree with Dr Miniter, who ignores the history, and interestingly comments repeatedly, that the insurer has not provided Dr Singh's reports. He also mentions an absence of a major injury, but ignores the nature of his physical work. He relies on his clinical examination to state that an injury has not occurred, but not the imaging.”
Dr Singh prepared a report for the applicant’s solicitors on 24 September 2021. Dr Singh repeated the history provided in his report of 11 August 2020. Dr Singh gave the opinion:’
“He was previously asymptomatic prior to this injury. The mechanism of repetitive neck and back injury is commensurate with his diagnosis, and I believe that his employment was a substantial contributing factor to his current condition. In the cervical spine, repetitive neck movements and looking down at his laptop and other devices with repetitive neck movements has certainly contributed to his cervical disc bulging and stenosis. Repetitive bending and lifting has resulted in aggravation of previously asymptomatic changes in the lumbar spine.”
Asked to comment on the opinion of the respondent’s medicolegal expert, Dr Singh responded:
“Dr Miniter does recognise the severity of this gentleman symptoms, but also notes that the right supinator reflex was reduced. He does not provide an alternative explanation for this gentleman’s symptoms and disability. He goes on to say that this gentleman is unlikely to be able to return to work. However, he does not give a diagnosis. I maintain that while he does not have objective radiculopathy signs on examination, this gentleman has ongoing symptoms referable to the C6 dermatome. I believe that his employment as a substantial contributing factor to the development of his cervical and lumbar injury.”
Dr New
The applicant relies on medicolegal reports prepared by orthopaedic and spinal surgeon, Dr Charles New, dated 1 October 2020, 8 April 2021 and 9 September 2021.
In his first report, Dr New took a history as follows:
“He states there was no specific injury which brought on his pain but this has gradually increased with time with regard to his lumbar spine and cervical spine. This is a result of the nature and conditions of his employment.
His normal duties involved a large amount of bending and lifting of weights up to around 20 kilograms. He states that he has been completing these duties for approximately seven years. These duties have changed with more customer focus since the COVID-19 pandemic.
He states that prior to this type of work he had not had any cervical or lumbar spine pathology.
One feature of his work at the present time is noted that when using a laptop he has to twist his body and his neck to the left side because of the positioning of the computer.”
Dr New recorded that the applicant had cervical spine and lumbar spine pain with referred pain into both shoulders and to the right hand in the C7 nerve root distribution. The lumbar spine pain referred into the S1 nerve root distribution bilaterally, with the left side greater than the right.
Dr New’s examination indicated some posterior cervical pain in the cervicothoracic junction and minor decrease in flexion, extension, lateral bending and rotation. The applicant had hypoaesthesia in the C7 nerve root distribution. There was a slightly protected sitting and standing attitude, an antalgic gait and decreased lumbar lordosis.
Dr New reviewed CT scans of the lumbar spine and cervical spine dated 25 June 2020.
Dr New made a diagnosis of:
“The diagnoses are cervical C7 right radiculopathy with cervical spondylosis and C6/7 lateral canal stenosis, and L4/5 and L5/S1 spondylosis with a left S1 radiculopathy.”
With regard to causation, Dr New stated:
“It is my opinion that his employment with Calstores Pty Ltd (formerly Australian Petroleum Pty Ltd) was a substantial contributing factor to his condition. He is a man weighing only 60 kilograms and was lifting up to one third of his weight regularly with stock maintenance and probably working in an environment at the till which was ergonomically challenging.”
Dr New said he had reviewed the reports of Dr Miniter dated 21 July 2020. Dr Miniter was an expert on foot and ankle pathology according to his website. Dr New disagreed with Dr Miniter’s assessment that there were no convincing features of radiculopathy. Dr New stated:
“Mr Saini is a young man who has the normal changes you would expect of a person in his fifth decade. He does not have by reports severe degenerative changes or a specific arthropathy. The main feature for this patient has been the radicular pain in the right arm in the C7 nerve root distribution, which is consistent with the C6/7 lateral canal stenosis. He also has pathology at L4/5 and L5/S1 and his left S1 and L5 weakness is consistent.
On Page 3 of Dr Miniter's report, I would disagree that this patient could bend effortlessly. The lumbo-pelvic rhythm was disrupted. He had a positive Trendelenberg sign and I would disagree with A/Prof Miniter in that his neurological examination was not normal. I would disagree with A/Prof Miniter in that he does not have only mechanical back pain. He has upper limb and lower limb radiculopathy.”
In his report of 8 April 2021, Dr New said the applicant’s presentation remained the same and he had been shown no further investigations. Dr New made an assessment of whole person impairment (WPI) giving a combined total of 26% WPI for the cervical spine and lumbar spine.
In his report dated 9 September 2021, Dr New confirmed the accuracy of his assessment of WPI. The opinion of Dr Miniter did not cause Dr New to alter his own opinion. Dr New referred to his own three decade experience as surgeon with sub-speciality qualifications of the spine.
Dr Phillipson
The respondent relies on a report prepared by Dr Natalie Phillipson, Chief Medical Officer, Spartan Occupational Health Services, dated 29 June 2020.
Dr Phillipson was asked to provide a diagnosis of the applicant and give an opinion as to whether any further investigations were required. Dr Phillipson responded:
“I did not find any specific diagnosis in Mr Saini's case.”
Asked to identify the reported mechanism of injury and give an opinion as to whether the diagnosis was consistent with this, Dr Phillipson responded:
“Mr Saini stated that his symptoms of lower back and neck pain radiating all the way to all of the digits of all four of his extremities were due to lifting heavy boxes of Coke. Of course, this mechanism of injury is inconsistent with this symptomatology.
…
I do not believe that Mr Saini has a workplace injury based on his stated symptoms. In fact, I have never come across this symptom set.”Dr Phillipson indicated that she did not believe that any particular treatment modality would be effective in the applicant’s case.
Dr Phillipson gave the opinion that there was no suggestion of pre-existing pathology.
Associate Professor Miniter
The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Associate Professor Paul Miniter, dated 21 July 2020, 17 June 2021 and 9 August 2021.
In his first report, Dr Miniter took a history of injury recorded as follows:
“Mr Saini presents with back pain and neck pain but no convincing features of radiculopathy. The pain began without injury and to direct questioning today he told me that he had had pain in his back for a long time. The matter somehow or other became worse in the first week of June, without injury.
I asked him what he felt had caused the pain and he told me that it was prolonged standing in his job working for Caltex. He did tell me that because of the COVID-19 situation he was required to serve customers more than he would normally do as other customer service positions had been made obsolete.”
Dr Miniter commented on the investigations stating:
“You will note that investigations are not necessary in a matter such as this but he nonetheless has had an MRI scan of his neck and of his lower back. These show age-related changes and in the neck it seems to show evidence of C6/7 osteoarthritic disease with a possibility of compression of the C7 nerve root. You will note that he has no symptoms of radiculopathy. In the lumbar spine, he has age-related degenerative change of the L4/5 and L5/S1 discs.”
Dr Miniter recorded an essentially normal examination stating that the applicant bent effortlessly to virtually touch his toes and recovered effortlessly from that position. The applicant had normal neurology in both upper and lower limbs and there were no features of nerve entrapment clinically.
Dr Miniter gave the opinion:
“As you know, back pain is a very common problem in the general community. Mr Saini presents with back pain. It can be very difficult to manage but the matter needs to be kept in perspective. He simply has mechanical back and neck pain, has some underlying degenerative change consistent with his age group and should not be requiring ongoing restrictions. If he feels that he cannot lift more than 4kg, and he did tell me this today, then it should be clearly understood that this is not related to the workplace.”
Dr Miniter gave the opinion that investigations should be strongly discouraged as these,
“often give patients the understanding that there is something serious underlying this matter when in truth there is not.”
Dr Miniter said there was no diagnosis of injury and the applicant simply had “mechanical back and neck pain.” Dr Miniter said the matter was not work-related.
Dr Miniter believed Dr Phillipson’s opinion that there was not a work-related issue to be reasonable.
Asked whether there was evidence of a pre-existing condition which had been aggravated or exacerbated by employment, Dr Miniter responded:
“Mr Saini simply has non-specific mechanical back pain. There are preexisting conditions identified on the investigations but for the reasons I have given earlier, these investigations were not required and are inappropriate in this situation.
…
I could see no evidence of aggravation of an underlying problem.”Dr Miniter suggested the applicant did not require medical treatment other than reassurance that the pain would settle. There were no features to suggest radiculopathy. The applicant was noted to have a number of concerning illness behaviours, particularly in relation to the seriousness of the issue.
Dr Miniter gave the opinion that the applicant’s physical role, as far as he could determine, was “relatively light”.
In his report dated 17 June 2021, Dr Miniter noted that the applicant had been seen by Dr Singh and Dr New. The applicant was not receiving any physiotherapy. Dr Miniter noted that Dr Lim had only seen the applicant for consultations over the Internet and did not appear to have at any stage examined the applicant clinically.
Dr Miniter recorded the applicant’s complaint of symptoms as follows:
“He told me that he has neck pain and back pain. He feels that this is made worse by the standing position at work, and he told me that in 2017 when management changed, he was given a laptop and told that he had to stand at a counter and use his laptop to continue the nature of his duties. I note also that he feels when he stands for prolonged periods, he has lower back pain which extends into the left leg. He feels that it extends below the knee on the left hand side but he is unable to determine which toes are involved, if any.
On the right hand side, he feels issues relating to the middle finger. I asked him what it was that caused this middle finger discomfort and he told me that when he drives, noting that he also has restrictions for his capacity to drive, the application of the radial aspect of the middle phalanx of his middle finger to the indicator stalk was sufficient to cause pain in his hand. I asked him where the pain radiated, and he told me that it just stayed in his finger. It does not have the characteristics of a right-sided C7 nerve root distribution. In my extensive experience as an orthopaedic surgeon, I have never heard a patient describe pain in the finger caused by nerve compression due to application of a finger to the indicator stalk of a motor vehicle. This is not the characteristic presentation of radiculopathy arising from the cervical spine.”
On examination, Dr Miniter noted that the applicant had an effortless and complete range of cervical spine movement. Although the CT scan and subsequent MRI scan suggested the possibility of cervical nerve root compression, extension and rotation of the neck caused no increase in his symptom complex.
The applicant reported intermittent discomfort on the radial aspect of both forearms. Dr Miniter noted that the applicant had injections into the cervical region without benefit.
Examination of the lumbar spine revealed diffuse discomfort at the lumbosacral junction. There were no features of radiculopathy. Dr Miniter commented,
“Whilst Dr New felt that he had reduced power of extensor digitorum longus, I could not find evidence of this, and I could also find no alteration in sensation. In fact, to direct testing, and I did this very carefully in view of Dr New’s report, I could see no evidence of altered sensation on either side. The patient confirmed this.”
Dr Miniter noted that the applicant had been seen by Dr Singh and commented that it would be important to see Dr Singh’s correspondence to identify the nature of the investigations he had suggested.
Dr Miniter gave the opinion:
“I return you to the fact that at no stage has this gentleman had an injury in the workplace. He told me once again that he felt that the nature of his position whereby he had to stand at a bench and look down on a laptop was causative of his problem. When one refers to the CT scan and the MRI imaging of the back and neck, it should be understood that a flexion position of the neck should not cause this type of problem as one sees no evidence of acute pathology on these scans. Simply put, they demonstrate degenerative change. If indeed there was evidence of an L5/S1 disc prolapse, then there should be at least some reproducible signs and he should have had at least some benefit from the injection therapy.”
Responding to a question about the history of the injury, Dr Miniter stated:
“I note that there are no specific events in his history other than standing and using a laptop. I went through the history very carefully with him to be sure that I was not missing anything. This is clearly my obligation to the claimant.”
Asked whether he maintained his previously expressed opinion, Dr Miniter responded:
“I stand by my diagnosis that there is no evidence of injury. If the history that he has given me, that is of simply standing and using a laptop, is implicit in his presentation, then one could impune no more than aggravation if indeed there was any true pathology that requires management. To suggest that the current situation some four years later bears a direct relationship to an episode whereby this man was standing and using a laptop simply does not make sense.”
Dr Miniter gave the opinion that the applicant had not reached maximum medical improvement and it was not appropriate to assess WPI.
In his final report, Dr Miniter noted that he still had not seen Dr Singh’s reports and there was no suggestion that Dr New had. Dr Miniter reiterated his previous findings on examination. With regard to the nature of the applicant’s employment, Dr Miniter stated:
“Turning now to the nature of his employment, I note that he did tell me that he was involved in the stacking of shelves, moving of objects and so on. However, he did not provide me with any history of major injury and he told me that in his opinion the main issue was the fact that he had to stand up and use a laptop.”
Dr Miniter maintained his opinion that the applicant had not sustained a diagnosable injury attributable to employment and that impairment was not assessable.
With regard to further treatment, Dr Miniter stated:
“In relation to treatment, you will note that the dominant presentation is of neck pain and back pain and that this particular malady is often incompletely treated in the general community by physiotherapy and other non-specific modalities of management. Simply put, this gentleman complains of pain. The pain does not have a clear diagnosable cause and in this situation it is highly unlikely that any particular treatment regimen will be of benefit to him. Indeed, in all likelihood, it will be the conclusion of this matter one way or another that will lead to the resolution of this man’s complaints and his return to work.”
Applicant’s submissions
The applicant submitted that he had sustained an injury within the meaning of s 4(b)(ii) of the 1987 Act. In support of his claim, the applicant relied on the opinions of Dr Singh, Dr New and his general practitioners. The applicant submitted that the Commission would reject the opinions of Dr Phillipson and Dr Miniter.
The applicant submitted that pathology at both the cervical spine and the lumbar spine could be seen in the CT scan. The clinical history noted in the report was of pain and sciatica. The CT scan provided clear evidence of pathology to explain the applicant’s symptoms. The applicant noted that no MRI had been undertaken due to claustrophobia.
The applicant referred to his statement evidence with regard to the nature of his duties including his evidence that looking down caused pain in his neck due to the posture.
Dr New recorded a consistent history, performed an examination and provided a clear diagnosis.
Dr Singh also took a history and recorded symptoms that were consistent with the applicant’s evidence and the CT scans. Dr Singh made a diagnosis and gave the opinion that the applicant’s symptoms resulted from a variety of physical workplace stressors.
Dr Singh noted that injection had provided the applicant with significant relief of his symptoms.
In light of the obvious pathology and obvious diagnosis as drawn by the applicant’s treating surgeon, the applicant submitted that the opinion of Dr Phillipson would be rejected.
Turning to Dr Miniter’s reports, the applicant noted that he relied on a variety of stressors, resulting in a gradual onset of symptoms rather than a specific event. The applicant had been able to work symptom free previously. A work-related change in the applicant’s symptoms was established clearly in the applicant’s medical evidence.
The applicant submitted that there were a number of errors in Dr Miniter’s reports including his references to there having been an MRI scan and the references to an incident. Dr Miniter’s opinion that there was no evidence of aggravation constituted a bare ipse dixit.
The applicant had complaints of pain, explained by pathology which had been the subject of a proper diagnosis by the applicant’s doctors.
Respondent’s submissions
The respondent submitted that evidence as to the applicant’s duties was contained in the applicant’s statement. The applicant had given no evidence about the size, weight or content of the items he was required to lift. Those were matters about which there ought to be some clear evidence and it was not open to the Commission to speculate about weights and the degree of repetition involved.
The respondent noted that Dr New took a history of the applicant engaging in bending and lifting weights of up to 20 kg. The job description attached to the ARD, however, indicated that lifting below the waist was rare. Lifting above the waist of weights greater than 10 kg was rare. The job description was inconsistent with the history recorded by Dr New.
The respondent submitted that there was no dispute that degenerative changes in the cervical spine and lumbar spine were present. There was no evidence to suggest that pathology was caused by the nature and conditions of the applicant’s employment.
In considering whether there was an aggravation of that pathology, the Commission would have regard to the vagueness of the evidence with regard to the frequency with which the applicant was lifting weights up to 20 kg. Referring to Makita (Australia) Pty Ltd v Sprowles[1], the respondent submitted that Dr New’s opinions were based on a history lacking in specificity. To the extent that his opinion was premised on a history of lifting a large amount of material up to a third of the applicant’s body weight on a regular basis, the opinion was unsupported by the evidence. Dr New did not explain the mechanism of any aggravation.
[1] [2001] NSWCA 305.
Dr New gave the opinion that employment was a “substantial contributing factor” to an aggravation injury but did not address the correct test, being one of “main contributing factor”. Dr New’s opinion was insufficient to discharge the applicant’s onus. Dr Singh was also asked to give an opinion applying the “substantial contributing factor” test.
Neither Dr New nor Dr Singh gave any explanation as to what they understood by the applicant’s assertion of repetitive lifting. Further evidence was required from the applicant for these doctors to identify the basis on which their assumptions were made. Without such evidence, there was not a fair climate for the acceptance of Dr Singh’s and Dr New’s opinions.
The respondent noted that the applicant had referred to a particular incident involving standing for an extended period on 2 June 2020. The applicant’s criticism of Dr Miniter’s references to there being a particular incident was misplaced. The applicant’s own evidence gave the impression of a frank event.
No clear history had been recorded by the applicant’s general practitioners, Dr New or Dr Singh. The evidence as to the applicant’s duties was vague and limited and not consistent with the Ampol job description. No reasoning had been provided by the applicant’s doctors as to why those duties would have aggravated the pathology at the applicant’s cervical and lumbar spine.
The respondent submitted that the Commission would not be satisfied that the nature and conditions of the applicant’s employment had caused an aggravation to which employment was the main contributing factor.
Applicant’s submissions in reply
The applicant reiterated that he did not rely on a frank injury but an aggravation of a disease injury for the purposes of s 4(b)(ii) of the 1987 Act. That the applicant’s duties could have caused an aggravation was conceded by Dr Miniter in his final report and was found by the doctors on whose opinions the applicant relied.
The applicant noted that the respondent had not provided any witness evidence which would challenge the applicant’s evidence as to the performance of his tasks. The job description contained a summary of those tasks and their physical requirements. There was no evidence from the respondent accounting for how the applicant in fact performed those tasks.
There was no evidence of any alternative basis for an aggravation. The timing of the onset of the applicant’s condition and the activities described by the applicant were the only factors considered relevant by the applicant’s doctors.
With regard to application of the “main contributing factor” test, the applicant submitted that the evidence was clear that the only source of aggravation was the applicant’s work. As a matter of common sense and logic, it followed that the “main contributing factor” test was satisfied.
FINDINGS AND REASONS
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In AV v AW[2], Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[2] AV v AW [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease was considered by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[3]:
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”
[3] [1964] HCA 34; (1964) 110 CLR 626 at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.[4]”
[4] At [635].
The Court of Appeal in Nguyen v Cosmopolitan Homes[5] has found that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, summarising the position as follows:
[5] [2008] NSWCA 246.
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
The applicant in this case alleges an injury to his cervical spine and lumbar spine pursuant to s 4(b)(ii) of the 1987 Act as a result of the nature and conditions of his employment with the respondent.
There is, in the CT scans attached to the ARD and described in the reports of the applicant’s doctors, evidence of pathology at both body parts. A correlation between that pathology and the applicant’s reported symptoms has been accepted by the applicant’s general practitioners, Dr Singh and Dr New.
Dr Phillipson, in her report of 29 June 2020, appeared unaware of the radiological investigations. Contrary to all of the other medical evidence, Dr Phillipson gave the opinion that there was no suggestion of pre-existing pathology. This circumstance causes me to give less weight to the opinion of Dr Phillipson.
Dr Miniter was aware that radiological investigations had taken place but erroneously referred in his initial report to an MRI scan of the neck and back. In his second report, Dr Miniter referred to a CT scan and subsequent MRI of the back and neck. There was no indication of an MRI scan of either the back or neck in the medical evidence before me. To the contrary, the evidence from Dr Singh on at least two occasions recorded that the applicant had been unable to undergo an MRI due to claustrophobia. These errors raise questions as to the closeness with which the radiological evidence was considered by Dr Miniter.
Although Dr Miniter accepted that the radiological investigations showed degenerative change and suggested the possibility of nerve root compression and disc prolapse, he did not appear to accept that this pathology accounted for the symptoms reported by the applicant. This opinion was based in part upon Dr Miniter’s essentially normal examination of the applicant and his understanding that the applicant had no benefit from injection therapy. It is notable that in forming his opinions, Dr Miniter does not appear to have been provided with the reports of the applicant’s treating surgeon, Dr Singh.
Dr Singh reported on 29 September 2020 that the applicant had undergone injections to the lumbar spine and cervical spine which gave him significant relief of symptoms during the anaesthetic phase. The diagnostic importance of the injections was noted by Dr Singh. The applicant’s own evidence is that he underwent a further course of injections in June 2021 which provided relief for approximately one to two months.
Differences between Dr Miniter’s examination of the applicant and those performed by Dr Singh and Dr New have been noted by the applicant’s specialists. Both Dr Singh and Dr New made neurological findings of hypoaesthesia in the upper limbs. Dr New recorded that there was a minor decrease in flexion, extension, lateral bending and rotation. The lumbo-pelvic rhythm was disrupted and the applicant had a positive Trendelenberg sign on Dr New’s findings.
Both the applicant’s ordinary general practitioner, Dr Madan, and Dr Lim agreed with the assessment of Dr Singh and Dr New that the applicant’s symptoms could be explained by the pathology shown on the CT scan. Dr Miniter’s diagnosis of mechanical back and neck pain was rejected for the reasons explained by the applicant’s doctors.
The weight of medical evidence before me therefore indicates that a correlation between the pathology at the cervical and lumbar spine and the applicant’s reported symptoms exists.
It remains to be determined whether the applicant’s experience of that pathology has been made worse or more intense by the nature and conditions of the applicant’s employment with the respondent.
The applicant’s evidence as to the nature and conditions of his employment is set out in his written statements and in the job description attached to the ARD. The applicant has given evidence that his duties involved a number of physical stressors impacting upon his neck and back. These included cleaning, pushing and emptying cages, stock filling, emptying milk crates, and handling beverage and liquor boxes. The applicant also reported standing at the counter for long periods of time and using a laptop on the counter which he was required to look down at as he was not able to sit. Dr New recorded that the applicant was required to twist his body and neck to the left side due when using the laptop due to its positioning. The applicant said his duties involved a large amount of bending and lifting of items weighing up to 20 kg. The applicant said he had been undertaking the same physically strenuous duties for approximately seven years.
The applicant’s account of his duties broadly aligns with the Ampol job description although the frequency with which particular tasks were performed appears less in that document. For example, that document indicates that the applicant’s position required only occasional bending, stooping, squatting, reaching below waist level, carrying, pushing and pulling, reaching to shoulder level and trunk rotation. Lifting to waist and above waist level at 10 kg was described as rare. Standing was, consistently with the applicant’s evidence, described as frequent.
As noted in the applicant’s submissions, there is no evidence from the respondent as to the manner in which the applicant actually performed these duties. The applicant’s evidence, which is uncontradicted by the respondent’s evidence, is that after May 2020, the applicant had more responsibilities due to labour cuts. The applicant was standing at the counter for eight to nine hours a day and required to pick up additional boxes, milk crates and empty liquor pallets and push cages. On 2 June 2020 the applicant’s symptoms came to a head.
Dr Madan has provided evidence that the applicant had complained of symptoms of pain in his back for the last five years which he related to his job tasks including repetitive, heavy lifting and prolonged standing. Dr Madan noted that the applicant had previously undergone a steroid injection in 2015 with temporary relief and had seen a chiropractor in the past with temporary relief. The applicant presented to Dr Madan in June 2020 reporting lower back pain radiating to his thighs to his heels and neck pain radiating to the middle two fingers.
Dr Madan rejected the suggestion that the applicant’s radiological findings and clinical symptoms were simply age-related in accepting a causal relationship between the symptoms and the applicant’s work.
A broadly consistent history of the applicant’s work duties, including the labour shortage in the lead up to June 2020, was given to Dr Lim, Dr Singh and Dr New. Each of these doctors has expressed the opinion that the applicant’s duties caused an aggravation of the pathology at the cervical spine and lumbar spine seen on the CT scan.
A similar history appears to have been provided to Dr Miniter although this was not recorded in his first report. Dr Miniter referred to prolonged standing and serving customers more than he would do normally and suggested that the worsening of symptoms in the first week of June was unexplained. In his 17 June 2021 report, Dr Miniter referred to the applicant being given a laptop and standing at the counter to use the laptop in 2017. Importantly, Dr Miniter appeared to accept that standing and using a laptop could aggravate the applicant’s symptoms if there was any true pathology requiring management. Dr Miniter did not accept that this posture could cause the pathology seen on the applicant’s scans. As noted by the applicant’s submissions, however, it is not necessary for the applicant to establish that the pathology was “caused” by the applicant’s work.
The history of stacking shelves, moving of objects and so on was eventually acknowledged by Dr Miniter in his final report. Dr Miniter did not, however, explain why these duties would not have aggravated the pathology at the applicant’s lumbar spine and cervical spine. Dr Miniter referred to the absence of a history of “major injury”. In giving his opinion, Dr Miniter appears to have focused on whether there had been an injury pursuant to s 4(a), and failed to explain why there was no aggravation for the purposes of s 4(b)(ii) of the 1987 Act.
For all of these reasons, I prefer the consistently expressed opinions of the applicant’s doctors, to those given by Dr Miniter.
I do, however, note that it is the applicant’s onus to establish injury on the balance of probabilities. The respondent has submitted that the applicant has failed to discharge that onus due to the lack of detail and specificity in his evidence as to his actual duties and the lack of explanation from the applicant’s doctors as to the mechanism of aggravation. In particular, the respondent notes the lack of detail with regard to the precise weights being lifted and the frequency with which physical tasks were performed.
I accept that for weight to be given to the applicant’s medical evidence there must be a sufficient correlation between the history recorded by the doctors and the history ultimately established by the evidence[6].
[6] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
Considering the evidence before me, I am satisfied that a broadly consistent history of duties was provided by the applicant to each of his doctors. Whilst some differences can be discerned between the applicant’s evidence and the Ampol job description with regard to weights and frequency, as indicated above, there is no evidence to contradict the applicant’s own as to the manner in which those duties were actually performed, particularly in the period prior to 2 June 2020.
I accept that there was scope for both the applicant and his doctors to record a more specific account of the weights and items being lifted and the frequency with which the applicant’s more physically demanding duties were being performed. It must be noted, however, that the applicant was performing duties of a nature which could be commonly observed or readily understood by those doctors. The account given to each of the applicant’s doctors was sufficient for them to be satisfied that an aggravation of the pathology at the applicant’s cervical spine and lumbar spine was caused by those duties.
The respondent’s expert, Dr Miniter, appears to have accepted that the posture with which the applicant was using a laptop had potential to cause an aggravation of pathology at the cervical spine. No explanation has been offered from Dr Miniter for his opinion that an aggravation of pathology at the lumbar spine would not have been caused by the duties described to him. As indicated above, the opinion of Dr Phillipson was given in the absence of radiological investigation.
I have also given consideration to the respondent’s submission that the applicant’s doctors failed to refer to the correct test in s 4(b)(ii) of the 1987 Act in giving an opinion that employment was a “substantial contributing factor” to the aggravation of the degenerative disease that the applicant’s cervical and lumbar spine.
As noted in AV v AW[7] above, whilst medical evidence on this question is desirable, its absence is not fatal. The lay and medical evidence must be considered as a whole. The uncontradicted evidence of the applicant, as recorded in the histories given to his doctors and in his statements, is that his neck and back were asymptomatic prior to employment with the respondent. Dr Madan provided evidence that the applicant had previous episodes of back pain during the period of employment with the respondent, attributed by the applicant to his work duties.
[7] AV v AW [2020] NSWWCCPD 9.
Evidence has been given by the applicant’s doctors rejecting the proposition that the onset of symptoms was idiopathic or purely age-related. Temporally, the onset of symptoms was associated with the applicant’s employment with the respondent. A mechanism, in the form of the applicant’s performance of his duties, has been identified as causative of an onset or increase in symptoms both by the applicant and his doctors.
No other aggravating or contributing factor is identified on the evidence before me.
In all the circumstances, and considering the evidence as a whole, I am satisfied, on the balance of probabilities, that the applicant has sustained an injury to his cervical spine and lumbar spine in the nature of an aggravation of degenerative disease, due to the nature and conditions of his employment with the respondent.
I am further satisfied that the applicant’s employment with the respondent was the main contributing factor to that aggravation.
The requirements of s 4(b)(ii) of the 1987 Act are satisfied.
Having made these findings, it is appropriate that there be an order for the respondent to pay the applicant’s reasonably necessary s 60 expenses upon production of accounts, receipts and/or valid Medicare notice of charge.
I also accept, having regard to Dr Miniter’s view that the applicant had failed to reach maximum medical improvement, that there is a medical dispute for the purposes of the claim for lump sum compensation. It is appropriate that the matter be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the injury found by me to the applicant’s cervical spine and lumbar spine.
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