Seddon v Australian Unity Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Seddon v Australian Unity Limited [2023] NSWPIC 29
APPLICANT:	Nicole Seddon
RESPONDENT:	Australian Unity Limited
Member:	John Wynyard
DATE OF DECISION:	24 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for spinal surgery, bariatric surgery, and weekly compensation; whether injury established; whether aggravation of constitutional condition ceased; whether applicant’s credit impugned; whether causal link in claim for bariatric surgery; Held – injury consisted of ongoing aggravation of L5/S1 spondylolisthesis; spinal surgery reasonably necessary; applicant totally incapacitated with increasing incontinence issues; respondent misapprehended basis of claim for bariatric surgery; applicant morbidly obese and spinal surgeon recommended referral to bariatric surgeon to ensure safety of spinal surgery, not that the subject injury to the spine had caused weight gain; Diab v NRMA Ltd considered and applied; applicant’s credit established by clinical notes; award for the applicant.
determinations made:	1. The applicant was injured on 8 September 2020 when she fell down stairs during the course of her employment. 2. The nature of the injury was the aggravation of her pre-existing back condition. 3. The applicant has been totally incapacitated by her injury. She was paid weekly compensation until 14 December 2021. 4. The proposed bariatric surgery by Dr Cichowitz is reasonably necessary. 5. The proposed spinal surgery proposed by Dr Cunningham is reasonably necessary.
orders made:	(a) The respondent will pay to the applicant the weekly sum of $429.90 from 15 December 2021 to date and continuing. (b) The respondent will pay the costs of and incidental to the proposed bariatric surgery recommended by Dr Cichowitz. (c) The respondent will pay the costs of and incidental to the proposed spinal surgery as recommended by Dr Cunningham.

STATEMENT OF REASONS

BACKGROUND

Nicole Seddon, the applicant, brings an action for weekly compensation and declarations pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) against Australian Unity Limited, the respondent, in respect of an injury which occurred on a deemed date of 8 September 2020.
Dispute notices were issued and proceedings were subsequently commenced with the filing of an Application to Resolve a Dispute (ARD) and Reply.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Has the accepted aggravation to the applicant’s lumbar spine resolved?
(b)    If not, does the applicant have any capacity to perform light duties?
(c)    Is the recommended bariatric surgery reasonably necessary?
(d)    Is the recommended spinal surgery reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was heard by way of a Teams video conciliation and arbitration conference on 6 December 2022. The applicant was represented by Mr Bill Carney of counsel instructed by Mr Dilan Kasturi of Messrs Carroll & O’Dea Lawyers. The respondent was represented by Mr Thomas Grimes of counsel instructed by Ms Belinda Walsh from Messrs Hall & Wilcox.
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)    Application to Admit Late Documents (ALD) dated 13 October 2022;
(c)    Reply and attached documents, and
(d)    ALD and attached documents tendered without objection by email on 6 December 2022.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

Applicant’s statement

The applicant made a statement dated 4 October 2022. She was born in 1976 and she detailed her employment history before she ceased work in about 2009 to have her son. She has worked variously as a fruit picker when she was young, a kindergarten reliever working with pre-school special education children, a dog boarding kennel for about two years and in various cafes. She worked for Australia Post doing parcel deliveries in Diamond Creek. When she moved out of the area she was working as a cook in a hotel before having her child. She worked as a cleaner for five years at Lake Edge resort in Yarrawonga/Mulwala.
She was employed as a Community Support Worker between 2017 and 2020 when in September 2020 the respondent took over the company by which she had hitherto been employed. Her duties involved personal care and domestic assistance, respite care and generally domestic work with clients.
She was working at the time of her injury about 20 hours per week, as her son is disabled and she needed to care for him.
Her health at the time of her injury included sleep apnoea (for which she has a C Pap machine). She suffered neck symptoms from whiplash injuries in the late 1990s and domestic violence in 2010. She had conservative treatment for that problem.
So far as her back is concerned, she said that in 2018 she tripped over her dog at home on the grass which caused, she said, “some muscle pain in my thoracic spine”[1].
[1] ARD page 2 [22].
She was treated by chiropractor Helen Wallace and thought her symptoms resolved within about one week. She differentiated that pain with the symptoms she experienced following the subject injury, saying it was higher on her back and a different type of pain. The earlier incident she remembered as being more like a sprain.
Ms Seddon said that prior to the subject injury on 8 September 2020 sometimes her lower back muscles would become tight because of her performing physical labour. She would have to sometimes vacuum up to four houses a day and clean up to six bathrooms. She said her work was repetitive, physical and daily. It involved showering and dressing people, and “it takes a toll on your body”.
She located her prior pain as being around L1 to T11 but since her fall her symptoms are around the L5/S1 and “is nothing like I have ever experienced before.” She had not taken time off work prior to this injury, apart from following the 2018 dog incident.
She described her pain as being at the top of her buttocks, going down the side of her legs with a tingling burning sensation all the way to her toes. When she was bad her knees would ache and she could only take small steps. She experienced numbness and some tingling around her saddle area.
She described the injury as occurring when she was walking down a set of stairs where she was working, and she misjudged the last step. She twisted her left foot and ankle with the result that she fell, landing heavily on her left side onto a couch with a hard wooden arm. She continued her work in pain over the next days because she was reluctant to make “a fuss” due to Australian Unity having just taken over as her employer.
The pain persisted however and she saw her general practitioner (GP), Dr Myint Lwin. She was referred for physiotherapy and scans.
On 10 September 2020 the applicant commenced physiotherapy with Helen Archer which did not give any long term relief.
A CT scan of the lumbar spine was taken on 25 February 2021. Due to continuing symptoms on 31 May 2021 a CT guided bilateral L5 nerve root steroid injection was administered. This did not have any lasting effect.
Ms Seddon attended Dr Michael Falkenberg on 14 September 2021 who referred her to Dr John Cunningham. Surgery was recommended.
She said that Dr Cunningham recommended that she lose weight prior to the spinal surgery and that she consider a gastric bypass surgery. She consulted Dr Adam Cichowitz in that regard. At the time of making her statement (4 October 2022) she weighed about 123 kg. She said that she always struggled with her weight and was unable to lose weight permanently, as she always regained it if she succeeded in losing weight for a time. She did not in her statement suggest that she had put on weight as a result of the subject injury. She said:
“45. Now with my back injury I cannot exercise at all which makes losing weight more difficult.”
Ms Seddon said that Dr Cichowitz was of the opinion that she would do well by undergoing a laparoscopic sleeve gastrectomy and that she would lose about 30kg in weight "which would make an (sic) dramatic difference to my future health and well-being and help with the management of my chronic lower back pain."[2]
[2] ARD page 4.
Ms Seddon stated that she was cleared to return to light duties following the accident, but was not supplied with them. She was returned to her same roster that she had started with. She got the treating physiotherapist appointed by the insurer, Helen Archer, to write to the respondent recommending that Ms Seddon be given only suitable duties, as Ms Seddon was too apprehensive to speak up herself. She continued to be given her usual duties however, until February 2021 “when I realised I was dealing with something more serious than a strain.”
Ms Seddon thought she was provided with light duties finally in March 2021. She said:
“56. Following my injury, my capacity to work fluctuated because the medication would work well at the beginning.
57. However, my lower back condition continued to deteriorate and my capacity to work also deteriorated to the point I was certified totally unfit to work.
58. I have not returned to work because of my lower back injury since about 15 July 2021.”
Ms Seddon listed many disabilities that her injury had caused her, including that she had developed a problem with control of her bladder and bowels. She said that these issues were getting worse and gave examples as to when she had been embarrassed by them.

Mr John Cunningham

Dr Cunningham described himself as “Mr”, as surgeons have been entitled to since time immemorial. With due respect I shall refer to him as “Dr Cunningham” to avoid unnecessary confusion. Dr Cunningham is an orthopaedic surgeon.
On 26 November 2021 Dr Cunningham made the following observations:[3]
“[Ms Seddon] now reports burning and tingling down both her legs, worse on the left than the right. She also reports numbness. These sensations go all the way to her feet, and she finds it difficult to walk because of them.
More recently she has had to use a stick on and off and she reports that her balance is deteriorating. She often finds it difficult to start her urine flow.
Miss Seddon currently weighs 130kg….
On examination she is moderately overweight…
Miss Seddon's imaging demonstrates an L5/S1 isthmic spondylolisthesis which I suspect was aggravated by the fall down the stairs. She has quite significant foraminal stenosis on both sides and I am sure this Is responsible for her symptoms.”
[3] ARD page 56.
Dr Cunningham recommended the subject spinal surgery. He said:
“I also discussed with her the issue of her weight and the way that that increases her risk of the operation.
I am going to write to WorkCover and see if they will accept liability not only for the operation but also for her to see a bariatric surgeon.”
Dr Cunningham’s letter to the insurer was also dated 26 November 2021.[4] He said:
“As a result of the injury Miss Seddon tells me that she has put on 15kg since the accident and now weighs 130kg.
In order to make the operation as safe as possible I would also like you to accept liability for her to see a bariatric surgeon and undergo bariatric surgery with the goal to make the operation safer in the long term.”
[4] ARD page 58.
On 3 February 2022 Dr Cunningham advised the insurer that Dr Smith, the medico-legal expert retained by the respondent, had made an error regarding Ms Seddon’s weight. He also had failed to consider that Ms Seddon’s Isthmic spondylolisthesis can become symptomatic following trauma. He said:
“I wrote my Masters Thesis on this subject and I would like to think that I am familiar with the considerations of this condition.
...
I repeat my request of 26^th November 2021, that you approve her to see a bariatric surgeon. This would directly address her condition which, as I stated before, is a direct result of her injury at work.”
In a further report of 31 May 2022, Dr Cunningham said:[5]
“It is vital, however, that prior to this surgery, Nicole loses a significant amount of weight. Therefore in order to safely perform this surgery I have requested that she also considers seeing a bariatric surgeon with a view to undergoing bariatric surgery and losing a significant amount of weight over a short period of time.
Not only would this make any further surgical intervention safer but may actually relieve her symptoms coming from her spine.”

[5] ARD page 61.

DR BODEL

Dr James Bodel, orthopaedic surgeon, who was retained as the applicant’s medico-legal specialist. On 6 January 2022 he said:[6]
“[Ms Seddon] does have significant disc pathology at that level and also evidence of bilateral pars interarticularis defects. These are a constitutional ailment dating back to her early teens. This is known as an isthmic or idiopathic Grade I spondylolisthesis associated with degenerative disc disease in the lumbosacral junction. The ‘injury’ is the aggravation, acceleration, exacerbation and deterioration of that disease process, which is the pars defects and the degenerative disc disease.
…
This lady does have mechanical backache. She has
referred pain into the legs. She has an unstable spine and needs the surgical stabilisation by surgery. She also has symptoms of bowel and bladder disturbance which makes this surgical option a semi-urgent matter.”
[6] ARD page 35.
On 2 March 2022 Dr Bodel commented on the proposed bariatric surgery. He said:[7]
“[Dr Cunningham] also observes that Dr Smith indicated that he thought that the lady’s weight was 85kg. [Dr Smith] did indicate that there were no scales available to him at the place where he assessed the lady, but others have assessed her at 130kg. I have recorded 127kg.
As a general principle therefore, an opinion from a bariatric surgeon would be appropriate prior to proceeding to spinal surgery of the type recommended by Dr Cunningham.”
[7] ARD page 43.

DR CICHOWITZ

The bariatric surgeon retained by the applicant was Dr Adam Cichowitz, bariatric surgeon. He said on 27 May 2022:[8]
“Nicole tells me that she has always struggled with her weight. She has tried dieting and exercise in the past with mixed success. Although she can lose up to 10 to 15 kgs when she tries she always seems to regain this and more with time. More recently she has struggled to lose weight because of her back injury which limits her ability to exercise.
Nicole's weight today was 128 kgs and with a height of 164 cms her BMI is 48 which places her in the morbid obese category and at significant risk of future obesity related morbidity and premature mortality.
….
I discussed the various options available to Nicole but she seemed most interested in a laparoscopic sleeve gastrectomy. I think that she would do well following the procedure and would stand to lose around 30 kgs in weight which would make a dramatic difference to her future health and wellbeing and would certainly help with management of her chronic lower back pain….”
[8] ARD page 62.
On 19 September 2022 Dr Cichowitz said further:[9]
“….Nicole certainly needs to lose a significant amount of weight in the order of 30 or 40kgs to safely undergo a spinal fusion as recommended by Dr Cunningham. A laparoscopic sleeve gastrectomy would certainly enable her to achieve this magnitude of weight loss which she has failed to achieve in the past through conservative measures such as dieting and exercise.”
[9] ARD page 64.

DR ANTHONY SMITH

The respondent, as indicated, relied on Dr Anthony Smith, orthopaedic surgeon, for its medico-legal advice. On 30 November 2021 he reported a consistent history of injury and initial treatment, with the exception that he stated there was “no relevant past medical history of any back disorder of insignificance (sic -significance)”. He said:[10]
“This woman has bilateral pars defects with a grade 1 – 2 spondylolisthesis. This anatomical variation is inherited and constitutional.... It commonly produces symptoms in young adults and late teenagers with sciatica being the problem in patients over the age of 30 years using an asymptomatic radiological abnormality.”
[10] Reply page 4.
Dr Smith suggested that there might also be some bilateral hip osteoarthritis in play. Dr Smith's diagnosis was that "there is a good chance that her current symptoms are consequent to hip osteoarthritis. It is statistically unlikely that the abnormality at L5-S1 is producing any symptoms. There was no clinical evidence of any nerve root compression on today's examination."
Dr Smith suggested that further investigations take place. Dr Smith advised:[11]
"[Ms Seddon's] hip arthritis and the pars defect and forward slipping of L5 on S1 are familial and inherited and she would have had these conditions whether she worked or whether she did not and no matter what work she engaged in. These pathologies are basically not injuries."
[11] Reply page 5.
Dr Smith advised:
“There would be no pain now consequent to any aggravation.....Those symptoms would have resolved of their own accord after, I would have thought, one month to 6 weeks…….and then any symptoms consequent to the end of December 2020 are due to further exacerbations/aggravations to one or other of these pathologies, with various activities on her part during the course of daily living.”
As to Ms Seddon's fitness for work, Dr Smith said:[12]
"The correct diagnosis should be established, after which she may well be fit to work normal hours on selected duties. Some pathology is more amenable to nonoperative treatment than others. It is possible with appropriate treatment that she returned to normal work."
[12] Reply page 6.
On 3 December 2021 Dr Smith reported again to the insurer. He said:[13]
“Thanks for your enquiry of 3 December 2021 regarding this patient, about who I consulted with on 16 November 2021. I did not have scales in the office in Canberra. She said she was 85 kg, and for her height, I would have thought that was reasonably accurate. I read a letter of Dr Doig from 6 May 2021. He describes her being moderately overweight with which I would concur. I would not have estimated her weight to be 130 kg when I saw her.”
[13] Reply page 9.
On 23 June 2022, the insurer sought Dr Smith’s opinion regarding Dr Bodel’s advice of 6 January 2022. Dr Smith said:[14]
“[Dr Bodel] makes a diagnosis of aggravation of isthmic, idiopathic Grade 1 spondylolisthesis at L5-S1, consequent to bilateral pars defects….
He describes the patient having bladder and bowel problems. There is no nerve root impingement or any disc bulging compressing the spinal cord. Any bladder and/or bowel problems she may have are unrelated to her low back.
Based on my clinical examination, she had a straight leg raise capacity to 80°, without any signs of nerve impingement. She has bilateral hip osteoarthritis. An examination of the left hip causes reproduction in the pain in the left side of the low back. I have no reason to alter my opinion that I expressed to you in my letter of 3 December 2021.”
[14] Reply page 12.
On 30 November 2022 Dr Smith was asked to comment on the need for bariatric surgery. He referred to the three occasions he had assessed Ms Seddon. He said:[15]
“I considered the diagnosis was not as complete as one would like.”
[15] ALD page 2.
Dr Smith considered the opinions of Drs Cunningham, Bodel and Cichowitz. Dr Smith said:
“There is, in my opinion, no relationship between any proposed bariatric treatment and the work incident on 8 September 2020, which in my opinion, has long since recovered. It is, in my opinion, highly improbable that there is anything in the way of symptoms emanating from the L5-S1 spondylolisthesis. Any symptoms are consequent to the arthritic process in the lower back at L4-5 and L5-S1, and also from her hip arthritis. There is no suggestion of any urgency for this spinal operation according to Dr Cunningham, if she can wait long enough to have bariatric surgery and weight loss.”

DR JAKOBOVITS

The respondent also lodged reports from Dr Andrew Jakobovits, gastroenterologist, dated 7 October 2022.[16] In taking Ms Seddon’s history, Dr Jakobovits said:
“Not only does she complain of back pain with burning and tingling down both legs but she told me that she has diminished perianal and pelvic sensation to the point where she, at times, has been incontinent of both faeces and urine. Although I am not a neurologist or spinal surgeon, I am concerned that she may have developed a cauda equina lesion and requires urgent re-assessment from Mr Cunningham.”
[16] Reply page 14.
Dr Jakobovits noted that Ms Seddon had been overweight for many years. He inspected the GP’s medical records and noted that she had been morbidly obese since at least March 2013. Her weight had fluctuated from 109 to 130kg since then, and he took a history that she had put on 15kg since the subject injury. He said:
“Prior to the back injury her bowel habit was perfectly regular. She has become constipated since taking Panadeine Forte. She now complains of numbness around the pelvic and peri-anal area and has had about five episodes of faecal incontinence over recent months. She needs to know where all the toilets are and carries a spare pair of underpants wherever she goes.”
Dr Jakobovits noted Dr Cunningham's opinion that a bariatric procedure should be done prior to the proposed back surgery to make the back surgery safer. Dr Jakobovits said:
"However, in looking through her GP records it is noted that she has been overweight bracket morbidly obese bracket at least since 2013. Therefore, even though bariatric surgery may well be warranted, in my opinion the WorkCover insurer need not accept liability for such a procedure."
The following question and answer appeared in Dr Jacobovits’ report:
“Do you agree with the opinion of Dr Cunningham who considers that is vital the Applicant lose weight before undertaking lumbar spine surgery? Please provide detailed reasons for your opinion.
There is no doubt that in an ideal world losing weight before such an operation would make the operation and post-operative progress less complicated, but I am concerned that she may need more urgent treatment for her back than pre-operative bariatric surgery would allow.”

SUBMISSIONS

Mr Carney

Mr Carney confirmed that the dispute for determination concerned whether the aggravation of Ms Seddon’s lumbar spine had ceased. He firstly referred to Ms Seddon’s statement of 4 October 2022.
Mr Carney submitted that although Ms Seddon had a considerable history of prior injuries, which she acknowledged from [16]. She acknowledged what appeared to be a back injury when she tripped over her dog on the grass in 2018, but said there was a significant difference to that experienced following the subject incident.
The further prior injuries involved some treatment from Dr Helen Wallace, chiropractor, whose notes, Mr Carney observed, were before me. These referred to back pain, but Mr Carney stressed Ms Seddon’s evidence that her symptoms were a different type of pain to that she had hitherto experienced.
The clinical notes of the Yarrawonga Medical Clinic, Mr Carney said, supported the applicant’s claim. Whilst there was one entry on 10 June 2021 that indicated improvement in Ms Seddon’s back complaints, there had been no suggestion in the notes that she had ever recovered, and she was taking heavy medication, including Endep. Moreover, Mr Carney argued, the entries before and after that date showed complaints of significant pain and radiculopathy. This, Mr Carney submitted, was the only indication of any variation in the applicant’s symptoms, the point being, he said, that there was no evidence that Ms Seddon was ever symptom free. The notes showed that on 21 July 2021 she was taking Endone and Panadeine Forte. Steroid injections had not been successful, and the notes demonstrated that her symptoms continued.
The continuing nature of the complaints was illustrated by the handwritten response to the insurer’s questionnaires by the GP Dr Lwin. Further, Mr Carney argued, the contents of the notes from the Yarrawonga Medical Clinic demonstrated Ms Seddon’s continuing symptoms. Steroid Injections had not provided any sustained relief and the continued prescription of Endep may well have masked her symptoms from time to time.
The concern of Ms Seddon’s treating medical team was evident as was illustrated by the referral by Dr Falkenberg of 14 September 2021 to orthopaedic spine surgeon Dr John Cunningham, and the possibility that surgery might be required by “an advanced spinal surgeon.” Symptoms indicative of radiculopathy were identified by Dr Falkenberg around the time Ms Seddon ceased work. Dr Falkenberg also raised the co-morbidity of her being overweight.
Dr Cunningham reported on 29 November that whilst spinal surgery was more than likely needed, he referred to Ms Seddon’s weight gain to 130kg, and recommended the bariatric surgery that is the subject of the claim.
At this point, Mr Carney said, Ms Seddon was seen by Dr Anthony Smith for the insurer, and he referred to Dr Cunningham’s response of 3 February 2022 and 31 May 2022 which discussed the reason for the recommended bariatric surgery. In that regard Mr Carney referred also to the advice of the Gastrointestinal & Bariatric Surgeon Mr Adam Cichowitz, which also supported the need for bariatric surgery described as the need to enable her to safely undergo the spinal surgery recommended by Dr Cunningham.
Mr Carney then turned to the question of Ms Seddon’s capacity to earn. He referred to Dr Lwin’s opinion of 7 September 2021 which downgraded Ms Seddon’s capacity to earn to nil after he had certified her as having capacity to perform suitable duties on 27 May 2021. This downgrade had been caused by her deteriorating condition and the increase of her symptoms.
Mr Carney referred to Ms Sutton’s prior health, noting her treatment with Dr Helen Wallace, chiropractor, over a period of time from 2014 for a neck problem, and back and leg problems in 2017 and 2018. He also referred to the 2002 motor vehicle accident. He submitted that Ms Sutton did not deny any of her prior history, but that the notes showed no complaints about the spinal area she has complained of since the subject injury of 8 September 2021.
Mr Carney then addressed the medico-legal evidence. Dr James Bodel diagnosed a continuing aggravation of Ms Seddon’s constitutional spondylolisthesis, Mr Carney said, but disagreed that any aggravation had ceased, as Dr Anthony Smith had advised. Moreover, Mr Carney submitted that Dr Bodel considered the prior health problems of Ms Seddon, and found her present condition was not causally connected.
Dr Andrew Jakobovits’ report was referred to. The problem, Mr Carney argued, was that Dr Jakobovits’ advice that the insurer was not liable was based on an erroneous assumption that it was necessary for the applicant to prove that her weight problem had been caused by the injury. The claim for bariatric surgery was advanced on the basis that the two recommended surgeries were interconnected, and the spinal surgery could not proceed unless the bariatric surgery occurred first.
Mr Carney stated that the pre-injury average weekly earnings (PIAWE) was $519.

Mr Grimes

Mr Grimes submitted that the PIAWE was actually $537.37, 80% of which was, relevantly, $429.90.
Mr Grimes then addressed the application for a declaration that the proposed bariatric surgery was reasonably necessary. He submitted that the proposal was based on the proposition that the need for this surgery had been caused by Ms Seddon’s increased weight since her injury on 8 September 2020.
In furtherance of that submission, Mr Grimes spent a considerable amount of time pointing to evidence that demonstrated the falsity of such a proposition. It is not necessary to refer to every clinical note or expert opinion that he relied on, as the basis of his assumption was not the basis on which the case was presented by the applicant.
Mr Grimes addressed the prior history of Ms Seddon’s back problems. Her statement, he said, tried to differentiate between the site of her present pain, and its referral down her leg. Mr Grimes submitted that her evidence was not correct and referred to various entries in the clinical notes that he said supported his submission.
Mr Grimes referred to Dr Anthony Smith’s advice that Ms Seddon was shown by imaging to have bilateral pars defects with Grade 1-2 spondylolisthesis, which was a constitutional and inherited variation affecting about 5% of the population. As I understood Mr Grimes, he submitted that Dr Smith’s opinion that any aggravation to that condition would have resolved was born out by the clinical notes. He referred to a handwritten letter of 9 October 2020 which indicated that Ms Seddon was back doing full duties, the inference being that the aggravation caused by the subject injury had therefore ceased, and it was, as Dr Smith said, Ms Seddon’s activities of everyday living that had caused a fresh and unrelated aggravation.

DISCUSSION

As indicated, there are four issues raised for determination. The first relates to the question of injury.

Injury

Section 4 of the 1987 Act provides:
"‘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.”
It is common ground that Ms Seddon aggravated a pre-existing constitutional condition, namely an L5/S1 spondylolisthesis with associated degenerative disease. However whilst Drs Cunningham and Bodel advised that the aggravation (Dr Bodel described it also as an acceleration, exacerbation, and deterioration) was the cause of Ms Seddon’s present condition, Dr Smith did not, saying that the aggravation would have resolved either one month, or six weeks after the injury on 8 September 2020, or by December 2020. Any current problems he initially said were due to further activities on Ms Seddon’s part during the course of her daily living.
It was difficult to understand Dr Smith’s reasoning, as he did not explain why he gave three different time frames for the aggravation to resolve. Respondent’s counsel attempted to supply an explanation by searching through the clinical notes. He found an entry dated 9 October 2020 from the insurer’s physiotherapist that said Ms Seddon was doing her full duties. Mr Grimes however conceded that Ms Archer also said:[17]
"I was wondering if there would be scope to even up the workload across all days, in order to prevent fatiguing and the possibility of further injury."
[17] ARD page 50.
I assume that it was this report that Ms Seddon alluded to in her statement when she got Ms Archer to write to the insurer recommending that she be given light duties, as Ms Seddon was too apprehensive to approach the respondent herself. Whilst Ms Archer’s report was not in precisely the same terms as Ms Seddon assumed, it gave no support to Dr Smith’s hypothesis. In the first place, the submission ignored Ms Seddon’s evidence that she was supposed to be doing light duties at the time, and secondly Dr Smith’s opinion did not recognise that the further activities in the course of Ms Seddon’s daily living indeed included her continued employment, about which Ms Archer was clearly concerned.
Mr Grimes also found an entry dated 10 June 2021 that he submitted supported Dr Smith’s proposition that the aggravation caused by the subject injury had ceased. The entry read:[18]
“workcover consult:
Nicole [Ms Seddon] come in, Nella from rehab on the phone and Ben Island from Australian Unity insurance department on the phone as well.
no symptoms in left leg symptoms in right leg has improved 90%. no pain. some tingling and numbness in foot and lower leg region only.
minimal pain in lower back”
[18] ARD page 111.
The entry is somewhat ambiguous in any event, as the presence, albeit telephonically, of the insurer and the rehabilitation specialist at the consultation make it unclear as to the origin of the conclusions noted, but leaving that to one side, the improvement was not sustained in any event. The following entry by Dr Lwin of 1 July 2021 showed, again in a consultation which had “Nella from rehab” on the phone, that Ms Seddon agreed to try cleaning work at one session per day. However Dr Lwin also prescribed Endep and Panadeine Forte at the same consultation, which medication was not consistent with a recovery from the aggravation caused by the fall on 8 September 2020.
Further, the earlier entries demonstrate that Ms Seddon had found Endep beneficial in reducing her symptoms. In an entry of 30 April 2021 Dr Lwin noted:[19]
“since taking Endep, she only has pain across lower back. has no symptoms in legs
……
she want to try higher dose of Endep and I advised her to take 2 tablets nocte started seeing physio and now doing pilates has used panadol osteo and nurofen without much relief”
[19] ARD page 113.
This entry too is incompatible with Dr Smith’s opinion that on one of the three suggested dates, the aggravation of Ms Seddon’s constitutional spondylolisthesis ceased and was replaced by symptoms, which she had never experienced before, from the same source.
Further, this submission also ignores Ms Seddon’s evidence that her capacity to work fluctuated because the medication worked well “at the beginning.”
I accept Mr Carney’s submission that there was no evidence that Ms Seddon had ever been symptom-free since the subject accident, and the clinical notes confirm that the medication regime prescribed to her had the effect of masking her symptoms from time to time. It is axiomatic that an improvement is not a recovery.
I reject Dr Smith’s opinion that the aggravation had ceased. Although Mr Grimes attempted to cherry pick supportive entries from the clinical notes such an attempt was doomed to failure from the outset, as no justification could be found for the somewhat fanciful theory that the aggravation ceased on one of three different dates. That conclusion was unsupported and a mere ipse dixit.
Further, whilst his opinion of 30 November 2021 accepted that Ms Seddon had an L5/S1 spondylolisthesis, he discounted that pathology as being “statistically unlikely” to be producing any symptoms. He suggested instead that “there is a good chance” that her symptoms were caused by hip osteoarthritis. This suggestion was not supported elsewhere in the medical evidence.
Moreover, the language used by Dr Smith suggested that his diagnosis was tentative, as did his recommendation that further investigations be completed. Indeed he confirmed when discussing Ms Seddon’s fitness for work that the correct diagnosis should be established. His later affirmative opinion that Ms Seddon’s symptoms were caused by bilateral osteoarthritis did not explain why his opinion had firmed on that cause.
Additionally, it was remarkable that Dr Smith, whilst discounting any causal relationship between Ms Seddon’s back complaints and her bowel and urinary incontinence, did not offer any alternative explanation for these symptoms – particularly in view of the alarm expressed by Dr Jakobovits, notwithstanding his lack of expertise in orthopaedic medicine. I did not read Dr Smith as suggesting that bilateral hip osteoarthritis could cause such symptoms.
I have indicated that the respondent’s submissions tended to ignore Ms Seddon’s own evidence. The respondent suggested that there were inconsistencies as to Ms Seddon’s account of prior back symptoms and the clinical records. Mr Grimes made extensive submissions on this topic, and again searched through the records in order to find some entry that might be at odds with Ms Seddon’s statement.
However. whether Ms Seddon’s prior back problems included the exact site of her L5/S1 spondylolisthesis, as Mr Grimes submitted, is a moot point, bearing in mind the danger that accompanies the interpretation of clinical notes.[20] In any event the symptoms of which Ms Seddon now complains – particularly her incontinence – demonstrated that her condition is significantly worse following the subject injury, even if, which I decline to find, she suffered prior symptoms at L5/S1. I do not propose to consider the respondent’s submissions any further in this regard. They are available in the transcript and it would seem that the respondent’s reliance on that material was to cast some doubt on Ms Seddon’s credit. I decline to draw any such inference.
[20] See Mason v Demasi [2009] NSWCA 227: Qannadian v Bartter Enterprises Ltd [2016] NSW WCC PD 50.
I have no reason to disbelieve Ms Seddon’s evidence. As has been seen, the contemporaneous evidence supported her assertions that she has never recovered, and I have no reason to doubt her statement. She has demonstrated that she has been a hard working citizen throughout her life, and her co-operation with the respondent’s rehabilitation specialists after her injury to keep working is also a testament to her attitude.
I am accordingly satisfied that Ms Seddon suffered an aggravation to her pre-existing constitutional condition, which has not ceased.

Earning capacity and spinal surgery

The second issue, Ms Seddon’s capacity to earn, and the third, whether the spinal surgery is reasonably necessary, are somewhat intertwined. There has been no suggestion that the proposed spinal surgery is not reasonably necessary. Dr Smith did not suggest otherwise, contenting himself to say that there was no urgency for the spinal operation.
The necessity for the surgery also simplifies the question of Ms Seddon’s capacity to earn. Her condition at the moment makes it quite impossible for her to work. Dr Bodel found she had no current work capacity and her condition will not improve until she has had the recommended surgery. She is totally incapacitated.

Bariatric surgery

The fourth issue is in relation to Ms Seddon’s application for a declaration that the proposed bariatric surgery is reasonably necessary.
I have referred to counsel’s misapprehension as to the reason this application was made. The referral to Dr Cichowitz was suggested by Dr Cunningham, and the suggestion was made because, as Dr Cunningham plainly stated on more than one occasion, the bariatric surgery was “in order to make the operation as safe as possible”, or “to safely perform this surgery.” Both gastroenterologists, Dr Cichowitz and Dr Jakobovits supported the recommendation, although both experts made observations about the more general benefits of such a procedure.
Dr Cichowitz provided further evidence, if such were needed, that the subject back injury had not of itself caused Ms Seddon to put on weight. Dr Cichowitz confirmed the respondent’s submission that she had always struggled with her weight, but he accepted that the bariatric surgery was necessary for her to safely undergo her spinal surgery. It was probable that Ms Seddon’s health would generally benefit from the loss of weight the bariatric surgery would produce in any event, but it is relevant that the referral to Dr Cichowitz followed the advice of Dr Cunningham. Dr Cunningham was concerned about the applicant’s safety in the event she proceeded with the spinal surgery without losing a significant amount of weight. Dr Bodel also confirmed Dr Cunningham’s advice in that regard.
Dr Jakobovits, although accepting that it was not his specialty, expressed concern a number of times that Ms Seddon may have developed a cauda equina lesion in view of her increased incontinence. However he made the same error as did respondent’s counsel by assuming that the basis of the application for bariatric surgery was that the subject injury had caused Ms Seddon’s weight increase. That was never alleged. Ms Seddon’s evidence was consistent with the notes referred to by both Dr Smith and Dr Jakobovits – that her weight fluctuated. Dr Jakobovits however did not disagree with Dr Cunningham’s opinion, which he acknowledged, that the bariatric surgery would make the spinal surgery safer.

In Diab v NRMA Ltd[21] principles were set out which are now settled law. Deputy President Roche summarised them from [88]:
[21] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
There is no doubt that Ms Seddon has been significantly injured by the subject injury. I accept the opinions of Dr Cunningham and Dr Bodel that she has aggravated, exacerbated, accelerated and deteriorated the isthmic or idiopathic Grade 1 spondylolisthesis associated with degenerative disc disease and pars defects in the lumbosacral junction. I accept Dr Cunningham’s opinion that trauma can aggravate such a condition, noting that he wrote his Masters Thesis on the subject. I reject Dr Smith’s opinion that any aggravation ceased for the reasons I have already outlined.
Accordingly the spinal surgery recommended satisfies the above paragraphs from Diab. The treatment is appropriate in view of the other failed treatment that has been tried such as steroid injections and medication. Indeed Dr Smith did not suggest any effective alternative to surgery. The cost has not been raised as an issue, and I am satisfied that the treatment has the potential to be effective.
As I indicated to counsel for the respondent during argument, I did not apprehend that the applicant alleged that the subject injury had caused her weight to increase. She did not say so herself, and whereas it was common ground between the bariatric experts that the loss of weight that followed the proposed bariatric surgery would generally improve Ms Seddon’s future health and well-being, the reason it was proposed was to ensure that the spinal surgery was conducted safely. Again, the principles in Diab are satisfied. The proposed treatment is appropriate, alternative treatment options have not succeeded, and the actual effectiveness of the treatment is common ground – that it will make the spinal surgery safer. The medical experts in the case agree as to be effectiveness and appropriateness.
I note that both Dr Jacobovits and Dr Smith referred to the urgency of the spinal surgery in terms that suggested that the bariatric surgery should not proceed because there was not enough time. I reject that argument. Neither Dr Bodel nor Dr Cunningham expressed such reservations, although I note the concern demonstrated even by the bariatric experts at Ms Seddon’s deteriorating condition. Such a decision may safely be left in the hands of the operating surgeon and his patient. There is no reason why Ms Seddon should not have the declaration so she can make such use of it as she is advised by her doctors. I am satisfied that the proposed bariatric surgery is reasonably necessary – indeed there was no expert opinion before me that suggested it was not.
As to the application for weekly compensation, Ms Seddon has not worked since about 15 July 2021 and the consensus of opinion is that she is unable to perform any duties, and is totally incapacitated. Her PIAWE was stated by the respondent to be $537.37 and her entitlement was to be calculated in accordance with the second entitlement period pursuant to s 37 of the 1987 Act. Eighty percent of the PIAWE was said to be $429.90.
Accordingly, I find:
(a)    the applicant was injured on 8 September 2020 when she fell down stairs during the course of her employment;
(b)    the nature of the injury was the aggravation of her pre-existing back condition;
(c)    the applicant has been totally incapacitated by her injury. She was paid weekly compensation until 14 December 2021;
(d)    the proposed bariatric surgery by Dr Cichowitz to be reasonably necessary, and
(e)    the proposed spinal surgery proposed by Dr Cunningham to be reasonably necessary.
I order:
(a)    the respondent will pay to the applicant the weekly sum of $429.90 from 15 December 2021 to date and continuing;
(b)    the respondent will pay the costs of and incidental to the proposed bariatric surgery recommended by Dr Cichowitz, and
(c)    the respondent will pay the costs of and incidental to the proposed spinal surgery as recommended by Dr Cunningham.

[2023] NSWPIC 29

24 January 2023