Shabutra v Australian Unity Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shabutra v Australian Unity Ltd [2024] NSWPIC 361
APPLICANT:	Richa Shabutra
RESPONDENT:	Australian Unity Limited
MEMBER:	Sophie Jones
DATE OF DECISION:	5 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether the applicant sustained injury pursuant to section 4; whether the employment was a substantial contributing factor to the injury pursuant to section 9A, or the main contributing factor pursuant to section 4(b)(ii); claim for weekly compensation pursuant to sections 36 and 37; claim for medical or related treatment expenses pursuant to section 60; Held – the applicant sustained a personal injury arising out of or in the course of employment and the applicant’s employment was a substantial contributing factor to the injury; the applicant is entitled to weekly payments of compensation; the applicant is entitled to compensation for reasonably necessary medical or related treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a personal injury arising out of or in the course of employment, pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) on 5 January 2021. 2. The applicant’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. 3. The respondent is to pay the applicant weekly compensation for the period from 6 January 2021 to 23 January 2022, pursuant to ss 36 and 37 of the 1987 Act, based on pre-injury average weekly earnings (PIAWE) of $667 (as indexed) as follows: a. $633.65 per week from 6 January 2021 – 31 March 2021; b. $651.90 per week from 1 April 2021 – 6 April 2021; c. $548.97 per week from 7 April 2021 – 28 August 2021; d. $194.01 per week from 29 August 2021 – 30 September 2021, and e. $200.54 per week from 1 October 2021 – 23 January 2022. 4. The respondent is to pay the applicant’s reasonably necessary medical treatment expenses incurred during the period from 6 January 2021 to 23 January 2022 in relation to the injury to her lumbar spine, on production of accounts, receipts and Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Richa Shabutra[1] (the applicant) commenced employment in June 2018 as a care worker with Australian Unity Limited (the respondent).
[1] The applicant is also known by the name Butrsri Pinchayaphum, Application to Admit Late Documents, page 2.
On 5 January 2021, the applicant states that she strained her back when she was performing personal care services for a heavy patient without assistance, which required her to put the patient into a sling hoist, roll the patient and transfer her to a wheelchair.[2]
[2] Application page 3.
The applicant has not returned to work as a carer since the incident on 5 January 2021, commencing alternative employment as a pathology collector in January 2022.
The applicant made a claim on the insurer for weekly payments of compensation and for medical and related treatment expenses, which the insurer declined on the basis that the applicant did not sustain a personal injury arising out of or in the course of her employment, the employment was not a substantial contributing factor to any injury or, in the alternative, not the main contributing factor to the contraction, aggravation, acceleration, exacerbation or deterioration of a disease, and any injury sustained (which was denied) had resolved.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (Application) in the Personal Injury Commission (Commission) on 26 April 2024.
The applicant seeks compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) for weekly payments of compensation for the period from 6 January 2021 to 23 January 2022 and a general order for reasonably necessary medical or related treatment expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury pursuant to either ss 4(a) or 4(b)(ii) of the 1987 Act;
(b) whether the applicant’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act;
(c) whether the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, pursuant to s 4(b)(ii) of the 1987 Act;
(d) the extent and quantification of the applicant’s entitlement to weekly payments of compensation for the period from 6 January 2021 to 23 January 2022, pursuant to ss 36 and 37 of the 1987 Act, and
(e) the applicant’s entitlement to medical or related treatment expenses pursuant to
s 60 of the 1987 Act.
The following matter was not in dispute between the parties:
(a) the applicant’s pre-injury average weekly earnings (PIAWE) was agreed to be $667.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 17 June 2024. The applicant was represented by Mr Stanton of counsel, instructed by Ms Lazar, Brydens Lawyers. The respondent was represented by Mr Perry of counsel, instructed by Mr Mickleburgh, Hicksons Lawyers. The applicant was in attendance, assisted by a Thai language interpreter.
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)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the applicant on 4 June 2024 and attached documents.

Oral evidence

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s statement

The applicant’s evidence is set out in a statement dated 19 January 2024.[3]
[3] Application page 3.
In her statement, the applicant advises that she commenced working as a care worker with the respondent in June 2018. She states that prior to the subject injury, she experienced lower back and bilateral leg pain in 2015 and underwent stem cell therapy, which was helpful. The applicant experienced flare ups of lower back pain with intense activity at work, however the flare ups were managed with medication and they never prevented her from performing her work as a carer.
The applicant noticed problems with her lower back in late 2020 and consulted with neurosurgeon Dr Joanna Lee in December 2020.
On 5 January 2021, the applicant was putting a heavy patient into a sling hoist, unassisted, when she strained her back and developed severe pain in her lower back.
The applicant states she developed severe pain in her back radiating down both legs. She consulted both her general practitioner (GP), Dr Biao Zeng, and Dr Lee and received two cortisone injections as well as being prescribed pain medication. The applicant also received chiropractic treatment and carried out her own exercise program.
The applicant has not returned to her previous employment and commenced in a different role as a pathology collector in approximately February 2022.

Medical evidence

Dr Joanna Lee report

A report dated 26 May 2023 from the applicant’s treating neurosurgeon, Dr Joanna Lee, was in evidence.[4] The report states that the applicant first consulted Dr Lee on 27 November 2020, presenting with a five-year history of worsening low back and bilateral leg pain.
[4] Application pages 29-31.
Dr Lee records that at further appointments in February, March and October 2021, the applicant complained of low back and bilateral hip pain.
Dr Lee notes the findings of a lumbar spine MRI in January 2021 showed “loss of lumbar lordosis, spondylotic changes at L5/S1, modic changes as well as broad based disc bulge of L5/S1 with right more than left foraminal narrowing especially seen on the T2 sagittal views” and considered the findings “may explain her low back and right more than left sided lower limb symptoms”. Dr Lee records that a bone scan and SPECT CT confirmed L5/S1 discal vertebral arthritis and right sacral iliac joint incompetence and based on the imaging findings, the applicant was “more likely to have both mechanical and neuropathic source of her pain, the former from the discal vertebral arthritis, modic changes of her L5/S1 while the latter from the L5/S1 broad based disc bulge with right more than left foraminal narrowing.”
Dr Lee reports that the applicant had two cortisone injections to the sacral iliac joint, responding positively to the first but not so well to the second.
Dr Lee states that there did not appear to be any pre-existing injuries or non-work-related activities or factors that contributed to the applicant’s back and bilateral leg injuries.
In relation to whether the applicant’s employment was a substantial contributing factor to the injury or, if the condition is a disease, whether the employment was the main contributing factor to the contraction of that disease or the aggravation, acceleration, exacerbation or deterioration of that disease, Dr Lee states the following:
“Based on the imaging findings of the MRI lumbar spine done at Rayscan January 2021 and the Bone scan + SPECT CT done 20th January 2021, she has a combination of both mechanical degenerative change that is part and parcel of ageing in all humans potentially in the animal kingdom. She also has broad based disc bulge that may be familial or genetic but can also be contributed by external factors such as the work that she has done. In our first meeting on 27^th November 2020 she had mentioned she is an aged care worker, does home visits, and also assists with transfer of high level care patients. My understanding of this is there is an element of lifting, twisting of patients with a certain weight that may or may not be done on their own or with assistance from other colleagues or assisted transfer devices. Repetitive bending, lifting and twisting can certainly accelerate known degenerative changes. This could worsen back pain or leg pain or both. So it is possible that her employment with Australia Unity Care Pty Ltd could have contributed to the worsening and possible acceleration and exacerbation of the natural human process of degenerative change.”

Dr Joanna Lee clinical notes

Dr Lee’s clinical notes were also in evidence and record consultations with the applicant commencing on 2 December 2020. The report from 2 December 2020[5] records the applicant’s “5 year history worsening low back and bilateral leg pain”, noting the pain started in 2015 and has been gradually worsening. Dr Lee recorded the applicant “is an aged care worker, and does home visits and assists with transfer of high level care patients.” Dr Lee requested the applicant undergo an MRI, bone scan and SPECT CT and a trial of a pain medication.
[5] Application page 42.
Dr Lee’s consultation report dated 15 February 2021[6] notes the MRI and bone scan findings. A consultation report dated 24 March 2021[7] notes a reduction in pain after the first cortisone injection and recommends physiotherapy and hydrotherapy.
[6] Application page 41.
[7] Application pages 39-40.
A further consultation report dated 7 July 2021[8] again recommends physiotherapy and hydrotherapy and states, in relation to the applicant’s work capacity, “I do not believe she is able to return to her previous job of heavy lifting, and transfer of patients as that will only serve to aggravate her back pain. Alternate duties which require less heavy lifting, repetitive bending and twisting would probably be more suitable for her.”
[8] Application pages 37-38.
The final consultation report in evidence is dated 25 October 2021.[9] Dr Lee notes the second cortisone injection provided some relief but was less effective than the first and physiotherapy was suggested. Dr Lee notes that based on the MRI findings, “there was evidence of an L5/S1 foraminal disc bulge.”
[9] Application page 36.

Dr Biao Zeng report

A report from the applicant’s treating GP, Dr Biao Zeng, dated 25 October 2023,[10] summarises the applicant’s presentations to the GP practice (Associated Medical Centre) in relation to back pain and states:
“1)     Ms Shabutra first presented this practice on 30/09/2015. She complainted [sic] left sided lower back pain due to very busy and heavy work. XR lumbar showed L5/S1 disc reduction on 30/09/2015. She presented the practice for recurrent lower back pain from time to time since then. Her lower back pain was getting worse. She was reviewd [sic] by neurosurgeon Dr Joanna Lee in 2020. Dr Lee arranged MRI lumbar spine. She started workcover in 2021. See attachment for clinic notes from 2015 and specialist assessment please contact with Dr Joanna Lee directly.
2)      The current main diagnosis is L5/S1 broad based disc bulge with foraminal narrowing. The prognosis is uncertain. The ongoing treatment options include avoid lifting, analgesia, physiotherapy and surgical intervention.
3)      In our practice, we do not record which showed the patient had pre-existing injury that contirnuted [sic] to her back and bilateral leg pains.
4)      We do not have any medical records or imaging regarding her lower back injury before 2015. If the patient did not have any back injury before 2015 and she is only working in this nursing home for many years. Her heavy working condition should be considered as a contributing factor for her lower back injury. More details please refer to Dr Lee's assessment.
5)      The patient's last workcover certificate in this practice was 24/07/2021. We are no idea for the progress for last 2 yrs.”
[10] Application page 100.

Associated Medical Centre clinical notes

Clinical notes were in evidence from Associated Medical Centre. Relevant entries are summarised below.
A consultation record dated 30 September 2015[11] records, “L sided lower back pain for 4 days”. Back pain is again recorded in consultation records dated 10 January 2016,[12] 29 January 2016[13] and 25 January 2017.[14] Consultation records dated 30 May 2019[15] and 10 June 2019[16] also record lumbar back pain with the comment, “overused back at work?”.
[11] Application page 101.
[12] Application page 103.
[13] Application page 104.
[14] Application page 105.
[15] Application page 146.
[16] Application page 147.
The next record of back pain is dated 26 April 2020[17] which notes:
“Exacerbation of lower back pain. Working in home care.”
[17] Application page 107.
On 30 June 2020,[18] the consultation record states:
“Presented with bilateral LBP pain aggravated last few weeks.”
[18] Application page 108.
Consultation records dated 14 October 2020,[19] 19 October 2020,[20] 2 December 2020[21] and 4 January 2021[22] record the applicant’s lower back pain was “getting worse”.
[19] Application page 109.
[20] Application page 110.
[21] Application page 111.
[22] Application page 112.
The clinical notes from consultations after 5 January 2021 include the first references to “light duties” and “carry no more than 5kg”[23] and the consultation record dated 17 March 2021[24] states:
“Patient mentioned she had worsening lower back pain after lifting for Ms Ly June at workplace on 05/01/2021.”
[23] Consultations on 16 January 2021, 6 February 2021, 13 February 2021, 6 March 2021, 10 March 2021, Application pages 113-117.
[24] Application page 118.
Subsequent consultation notes from 27 March 2021 to 1 May 2021[25] record the applicant improved with physiotherapy and chiropractic therapy. Records dated 8 May 2021, 5 June 2021, 26 June 2021 and 24 July 2021[26] record persistent lower back pain and that an MRI showed L5/S1 disc prolapse.

[25] Application pages 119-122.

[26] Application pages 123-126.

Certificates of Capacity

Certificates of Capacity (CoC) completed by Dr Zeng were in evidence, covering the period from 13 February 2021 to 28 August 2021.[27] The CoCs certify the applicant had no capacity for any employment during this period, with the diagnosis stated as L5/S1 prolapse and the comment, “Lower back pain for yrs. Worsening lower back pain after heavy lifting for Ms Ly June at workplace on 05/01/2021.”
[27] Application pages 412-414, 44-46, 220-223, 216-219, 204-207, 198-201, 190-193.

Radiological investigation reports

An X-ray report of the lumbar spine dated 30 September 2015[28] records:
“L5/S1 disc reduction suggesting disc pathology.”
[28] Application page 50.
An MRI lumbar spine report dated 15 January 2021[29] found:
“L5-S1 demonstrates a central and right paracentral disc bulge distorting the right side of the thecal sac. There is no exit foraminal stenosis. Bilateral facet joint arthropathy identified.”
[29] Application page 49.
The impression on the MRI report is stated as:
“Lumbar spondylitic change at L5-S1 with a right paracentral disc bulge and endplate reactive changes.”
A bone scan report dated 22 January 2021[30] records the following conclusion:
“While there is evidence of degenerative change around the intervertebral disc at L5/S1, the principal functional diagnosis is of right sacroiliac joint incompetence. There is no evidence of sacroiliitis.”

Qualified evidence

[30] Application page 48.

Dr Graeme Mendelsohn

The applicant relies on the report of general surgeon Dr Graeme Mendelsohn dated 17 December 2021.[31]
[31] Application pages 23-28.
Dr Mendelsohn records the applicant first had difficulties with her back in 2015 and she underwent some injection therapy at that time. Dr Mendelsohn notes:
“She denies any injury at work prior to the incident under discussion and was able to continue to work, carrying out all her duties without problems until this incident.”
Dr Mendelsohn records the applicant first noticed problems in December 2019, experiencing low back pain while doing her work duties which included lifting patients with a hoist.
Dr Mendelsohn records that on 5 January 2021, the applicant developed severe pain in her lower back while working with a heavy patient and then developed sciatic symptoms of numbness in both legs.
Dr Mendelsohn reviewed the radiological investigation reports, noting a CT of the lumbar spine dated 13 January 2016 showed “a posterior disc bulge but no focal disc herniation at the lumbosacral level”, an MRI report dated 15 January 2021 showed “lumbar spondylotic changes at the lumbosacral level with a right paracentral disc bulge and end plate reactive changes. There is a minor broad based disc bulge at the L4/5 level” and a bone scan dated 26 January 2021 showed “evidence of degenerative changes around the lumbosacral intervertebral disc but there was functional right sacroiliac incompetence.”
Under the heading “Diagnosis of the worker’s condition” Dr Mendelsohn states:
“Ms Shabutra has suffered an aggravation of an underlying lumbar disc prolapse as a consequence of an incident at work on 5 January as described.”
Dr Mendelsohn states he believes her condition is consistent with the mechanism of injury described, being “a straining incident during the course of her work.”
In answer to questions as to whether the applicant’s condition was caused or materially aggravated by the nature and conditions of the applicant’s employment or whether the applicant’s condition is a disease, Dr Mendelsohn states the condition was a “frank injury”.
Dr Mendelsohn states that the treatment the applicant has received has been of a conservative nature including analgesia, cortisone injections and an exercise program and it has been reasonably necessary and appropriate.
Dr Mendelsohn states that the applicant is not fit for her pre-injury duties and should avoid heavy lifting and straining. Dr Mendelsohn states:
“I do not believe she is totally incapacitated for work but as I said above, she will need a change of her duties. She may also have to retrain in a completely different area within light cleaning or sedentary type duties provided she is able to get up to move around from time to time to prevent stiffness. She should avoid all heavy lifting and straining such in the way of bending, stooping and kneeling.”

Dr John Sheehy

The respondent relies on reports of neurosurgeon Dr John Sheehy dated 2 August 2021[32] and 2 September 2021.[33]
[32] Reply pages 13-18.
[33] Reply pages 19-20.
In his report dated 2 August 2021, Dr Sheehy recorded a history that on 5 January 2021, the applicant was rolling and moving a patient when she developed pain in the right side of the low back.
Dr Sheehy reviewed the radiological reports and the reports of Dr Lee and undertook a clinical examination of the claimant.
Dr Sheehy provided the following diagnosis:
“Ms Pinchaiyaphum has had problems with her low back for some years and there was an aggravation to the back occurring on 5 January 2021 while at work as outlined in the body of the report.
The MR scan demonstrates prominence of the L5/S1 disc with degenerative changes at this level and a degree of foraminal compromise of the right L5/S1 foramen.
She has responded well however to an injection of the right sacroiliac joint.”
In relation to the mechanism of injury, Dr Sheehy states that “the injury aggravated her pre-existing low back condition and it does match the diagnosis.”
Dr Sheehy states that the applicant’s employment has aggravated her injury and it has been a substantial contributing factor. Dr Sheehy notes that the applicant had prior symptoms and there was an aggravation on 5 January 2021.
In relation to work capacity, Dr Sheehy states that the applicant is unfit for pre-injury duties as a care worker but is fit for restricted duties, provided she can sit and stand as she wishes and there is no bending or lifting required beyond 5kg. Dr Sheehy believes the applicant should initially return to work part-time and receive physiotherapy, transitioning to an exercise program, and hydrotherapy.
In Dr Sheehy’s supplementary report dated 2 September 2021, he considers that as the applicant had not worked for the past eight months, “On the balance of probabilities, it is likely that the work-related aggravation has ceased and underlying degenerative changes are delaying resolution of symptoms.”

SUBMISSIONS

Applicant’s submissions

In summary, the applicant’s submissions were that:
(a)    the applicant suffered a frank injury on 5 January 2021 and was unfit for work over the period claimed as a result of the frank injury.
(b)    The alternative pleading of the injury as a disease is not pressed as the qualified opinion evidence is based on the correct history concerning the incident on 5 January 2021, which is the incident that caused the incapacity.
(c)    The applicant had experienced pre-existing problems in her back since 2015 but these did not prevent the applicant from working as a care worker in an aged care facility, which included a degree of heavy work. This changed on 5 January 2021, when there was an incident in which the applicant strained her back caring for a heavy patient and the applicant had to cease work.
(d)    The incident on 5 January 2021 caused severe pain in the back and pain radiating down both legs to her toes.
(e)    An MRI scan on 15 January 2021 showed lumbar spondylitic change at L5-S1 with a right paracentral disc bulge and this provides significant corroborating radiological evidence that the extent of the bulge at the L5-S1 level has come about as a result of the incident on 5 January 2021.
(f)    Dr Lee did not comment on the 5 January 2021 incident but noted the applicant’s symptoms were heightened after this date and recommended new treatment, specifically CT guided joint injections and physiotherapy.
(g)    Dr Lee commented that the disc bulge may be due to work, however it appears that Dr Lee was not made aware of the incident on 5 January 2021.
(h)    Dr Mendelsohn took the history of the incident on 5 January 2021 and that the applicant’s previous back problems had worsened since December 2019. Dr Mendelsohn had a historical CT scan report from 13 January 2016 which showed a posterior disc bulge but no focal disc herniation at the lumbosacral level, this is contrasted with the MRI scan of 15 January 2021 which showed a bulge.
(i)    Dr Mendelsohn diagnosed an aggravation of underlying lumbar disc prolapse as a consequence of the incident at work on 5 January 2021, consistent with the mechanism of injury and considered this to be a frank injury rather than an aggravation of a disease.
(j)    Dr Mendelsohn’s opinion was the incident on 5 January 2021 caused the degree of prolapse.
(k)    The history recorded by Dr Mendelsohn is accurate as he is aware of the incident on 5 January 2021, he had the benefit of the radiology and his view is that there is a frank injury that has caused a prolapse of the lumbosacral disc.
(l)    Dr Sheehy also dealt with the incident in terms of it being a frank incident, not an aggravation of a disease.
(m)     Dr Sheehy found the applicant’s employment had aggravated the applicant’s lumbar spine, and it was a substantial contributing factor, however in his supplementary report, he found the work-related aggravation had ceased.
(n)    Dr Sheehy’s finding does not sit logically with the fact that the applicant has not been able to return to her previous work and her symptoms and functional limitations have continued to be at a worse level than before 5 January 2021.
(o)    The radiological evidence corroborates the prolapse at the L5/S1 level and explains why the applicant could not continue her previous role and had to find a different job.
(p)    The aggravating effects of the incident on 5 January 2021 have not ceased and the pathological reasons for that are explained by the radiological evidence.
(q)    Dr Mendelsohn considered the applicant had some capacity for employment from 17 December 2021 with restrictions, but was not fit for pre-injury duties.
(r)    Prior to 17 December 2021, the applicant had no work capacity and was undergoing treatment during this time including joint injections, physiotherapy and hydrotherapy.
(s)    To determine the applicant’s capacity between 17 December 2021 and 23 January 2022, basic rates of pay for part-time work should be considered.

Respondent’s submissions

In summary, the respondent’s submissions were that:
(a)    Dr Mendelsohn’s comment that the injury was a “frank injury” was in answer to questions regarding disease.
(b)    Dr Mendelsohn did not find the incident on 5 January 2021 caused a prolapse of the L5-S1 disc but that there was an aggravation of underlying lumbar disc prolapse. The worker took a lumbar disc prolapse into this incident which is evidenced by the CT scan of 2016 which showed a disc bulge.
(c)    Dr Mendelsohn’s opinion is in concert with the other doctors that this was an aggravation.
(d)    There is no evidence of a pathological change on 5 January 2021.
(e)    The applicant was not “perfectly able” to work before January 2021 as she had had lower back pain for years.
(f)    The applicant had an increase in symptoms after 5 January 2021 but the evidence does not enable a comparison between the pre-incident situation and the situation after 5 January 2021.
(g) If this were only a case under s 4(b)(ii), the evidence would not satisfy the stringent “main contributing factor” test as described in AV v AW [2020] NSWWCCPD 9 at [78].
(h)    Dr Lee recorded in 2020 a five-year history of worsening back pain and that the applicant had been well prior to 2015.
(i)    The applicant’s back pain commenced in 2015 and had been worsening for two-and-a-half years before her commencement of employment with the respondent.
(j)    The applicant must demonstrate that the pain she experienced after 5 January 2021 was not simply the pain that was pre-existing. If the Commission is persuaded that the event of 5 January 2021 changed the situation and she had more pain after 5 January 2021, she had an improvement after that.
(k)    Dr Sheehy’s opinion is correct as the applicant has not proven that the symptomatic aggravation has not resolved and the effect of injury continued beyond 24 July 2021.
(l)    Dr Zeng’s last work cover certificate was dated 24 July 2021 and the applicant received no further treatment from Dr Zeng after 24 July 2021.
(m)     If the applicant is awarded weekly compensation, the applicant had a residual work capacity from 24 July 202 and calculations should be based on a 20 hour week, with the PIAWE divided by 38 and multiplied by 20.
(n)    Any general award for medical expenses should be limited to expenses for reasonably necessary medical treatment for the lumbar spine injury that were incurred prior to 23 January 2022.

Applicant’s submissions in reply

In summary, the applicant’s submissions in reply were that:
(a) even if Dr Sheehy’s opinion was accepted that the work-related aggravation of the applicant’s condition had ceased, the applicant would still be awarded some compensation, as his opinion was that there had been an aggravation, although it had ceased.

FINDINGS AND REASONS

Injury

“Injury” is defined in s 4 of the 1987 Act:
“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.”
The applicant bears the onus of proving injury on the balance of probabilities.
The applicant submits that she suffered a “frank” injury on 5 January 2021, that is to say, a “personal injury” for the purposes of s 4(a) of the 1987 Act, rather than a “disease injury”.
The respondent submits there is no evidence of a pathological change on 5 January 2021 and the applicant already had a lumbar disc prolapse before 5 January 2021.
The meaning of “personal injury” was considered by Roche DP in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as Administrator of the Estate of Anthony John Kear [2014] NSWWCCPD 47 at [38]:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 at [39]). In other words, as stated at [81] in North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead) it is ‘a sudden identifiable pathological change’.”
However, as explained in Felstead, the terms “personal injury” and “disease” are not mutually exclusive categories. Roche DP stated at [77]:
“A sudden identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury.”
In relation to “suddenness”, the High Court held in Miliary Rehabilitation and Compensation Commission v May [2016] 257 CLR 468; HCA 19 at [47] (footnotes omitted):
““suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee's condition might be a “disturbance of the normal physiological state”. That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.”
It is common ground that the applicant has experienced lumbar spine pain since 2015. This is referred to in the reports of Dr Lee and Dr Zeng and confirmed by the GP clinical notes which contain a number of references to back pain in the consultation records between 30 September 2015 and 4 January 2021 and record worsening back pain from late 2020.
The incident that occurred on 5 January 2021 therefore occurred in the context of underlying back pain.
Considering the evidence of whether there was an identifiable physiological change or disturbance on 5 January 2021, the applicant’s evidence is that on 5 January 2021 she “strained” her back whilst transferring and rolling a heavy patient and “developed severe pain in [her] lower back.” The applicant described her pain as “severe pain in my back radiating down to my bilateral legs. The pain radiated to the front of my shins down to my toes. I experienced numbness.”
The applicant reported the same history to her GP, who recorded “patient mentioned she had worsening lower back pain after heavy lifting for Ms Ly June at workplace on 05/01/2021.”
The same history is recorded by Dr Mendelsohn and Dr Sheehy in their reports.
The GP clinical notes subsequent to 5 January 2021 include, for the first time, references to “light duties” and “carry no more than 5kg” and I note that the applicant was referred for cortisone injections, the first of which she had on 11 March 2021.
I have had regard to the radiological evidence. The X-ray report dated 30 September 2015 found at that time, “L5/S1 disc reduction suggesting disc pathology.” Therefore, as at 2015, the radiology showed disc pathology but no disc bulge or prolapse.
Dr Mendelsohn referred to the findings of a CT scan of the lumbar spine dated 13 January 2016, which was not in evidence. Dr Mendelsohn reported it showed “a posterior disc bulge but no focal disc herniation at the lumbosacral level”.
This is contrasted with the MRI findings dated 15 January 2021 which showed:
“L5-S1 demonstrates a central and right paracentral disc bulge distorting the right side of the thecal sac. There is no exit foraminal stenosis. Bilateral facet joint arthropathy identified.”
From the above, I consider that the radiology reports demonstrate a development from L5/S1 disc reduction in September 2015, to posterior disc bulge with no focal disc herniation in January 2016, to L5-S1 central and right paracentral disc bulge distorting the right side of the thecal sac on 15 January 2021, which was described by Dr Lee as “evidence of an L5/S1 foraminal disc bulge.” I note Dr Sheehy was of the opinion that “The changes on the MR scan at L5/S1 pre-date the injury”,[34] however it is unclear how Dr Sheehy reached this opinion as it does not appear from his report that he reviewed the previous radiological scans or reports.
[34] Reply page 17.
The CoCs completed by the applicant’s treating GP give the diagnosis of “L5/S1 disc prolapse” with the comment, “Lower back pain for yrs. Worsening lower back pain after heavy lifting for Ms Ly June at workplace on 05/01/2021.”
The diagnosis provided by Dr Mendelsohn was “aggravation of an underlying lumbar disc prolapse as a consequence of an incident at work on 5 January.” Dr Mendelsohn considered the applicant’s injury was consistent with the mechanism of injury described, being “a straining incident during the course of her work” and considered the injury to be a “frank” injury rather than a disease.
Dr Sheehy also expressed his report in terms of “injury”. The diagnosis provided by Dr Sheehy was expressed as follows:
“Ms Pinchaiyaphum has had problems with her low back for some years and there was an aggravation to the back occurring on 5 January 2021 while at work as outlined in the body of the report.
The MR scan demonstrates prominence of the L5/S1 disc with degenerative changes at this level and a degree of foraminal compromise of the right L5/S1 foramen.”
Dr Sheehy considered, in relation to the mechanism of injury that “the injury aggravated her pre-existing low back condition and it does match the diagnosis.”
In addition, Dr Sheehy was of the opinion that the applicant’s employment had aggravated her injury and was a substantial contributing factor, although he considered in his supplementary report dated 2 September 2021, that on the balance of probabilities, the work-related aggravation had ceased.
According to the evidence, before 5 January 2021, the applicant was able to work as a carer, despite experiencing back pain. The applicant’s evidence is that this changed on 5 January 2021, and she has not been able to continue working as a carer since that date.
I consider that the medical evidence supports that the applicant sustained a personal injury to her lumbar spine on 5 January 2021. The radiological evidence changed from “a posterior disc bulge” (as reported by Dr Mendelsohn but not in evidence) before the incident on 5 January 2021, to a “central and right paracentral disc bulge distorting the right side of the thecal sac” at L5-S1 after 5 January 2021, described by Dr Lee as “evidence of an L5/S1 foraminal disc bulge.” Considered in the context of the history provided by the applicant that she developed severe pain in her lower back while hoisting/rolling a heavy patient on 5 January 2021, the fact that the applicant reported to her GP that her pain had worsened after the incident on 5 January 2021, the fact that the applicant had to cease work as a carer from that date and has been unable to return to her previous role, the opinion of Dr Mendelsohn that the injury was in the nature of a “frank” injury and the fact that Dr Sheehy’s report also deals with the injury in terms of a personal injury rather than a disease injury, I am satisfied on the balance of probabilities that the applicant sustained a personal injury to her lumbar spine on 5 January 2021.
In addition to finding a personal injury established, s 4(a) of the 1987 Act requires the personal injury to have arisen “out of or in the course of employment”. In Weston v Great Boulder Gold Mines Ltd [1964] HCA 59; (1964) 11 CLR 30, Menzies J held (at [40]) that “anything at all that happens to a man while he is at work happens in the course of his employment”.
The applicant’s evidence is that on 5 January 2021, she was at work and strained her back while carrying out personal care services for a patient. This history has not been challenged and is the same history that is recorded in the contemporaneous GP clinical notes as well as in the reports of Dr Mendelsohn and Dr Sheehy. I am therefore satisfied that the injury occurred while the applicant was at work.
Having regard to all the evidence, I am satisfied on the balance of probabilities that the personal injury sustained by the applicant on 5 January 2021 arose out of or in the course of her employment.

Employment substantial contributing factor

Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

Pursuant to s 9A(3), the fact that the injury arose out of or in the course of employment, is not sufficient to establish that the worker’s employment is a substantial contributing factor.
I am required to be satisfied that “the employment concerned” was a “substantial” contributing factor to the injury. This requires a necessary causal link between the employment concerned and the injury, which must be “substantial”.
In evaluating the causal link, what is required is “a commonsense evaluation of the causal chain”: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, per Kirby P at [810].
As noted above, the applicant’s injury occurred while the applicant was at work, carrying out personal care duties in her role as a care worker with the respondent.
Noting the MRI findings of an L5/S1 foraminal disc bulge, Dr Lee considered that this can be contributed to by external factors such as work.
In answer to the question whether the applicant’s employment with the respondent was the substantial contributing factor to the injury, Dr Sheehy states:
“a.     The time and place of the injury
Ms Pinchaiyaphum’s employment has aggravated her injury. It has been a substantial contributing factor. She was symptomatic prior to the injury.
b.     Nature of their employment and the specific tasks.
The nature of her employment certainly is likely to have provided reasons for an aggravation of her injury.
c.     The duration of the employment.
She had been employed with Australian Unity for three years.
d.     The probability that this or a similar injury would have happened around the same time in the worker's life if they had not been in their employment.
She had had prior symptoms and there was an aggravation on 5 January.
e.     Sofia's life away from the workplace.
There is no issue with her life away from the workplace.”
Having regard to the evidence, and in particular Dr Sheehy’s consideration of the factors in s 9A of the 1987 Act, I am satisfied that the applicant’s employment was a substantial contributing factor to the lumbar spine injury.
As I have found that the applicant sustained a personal injury arising out of or in the course of employment and that the employment concerned was a substantial contributing factor to the injury, I do not need to consider whether the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease injury, pursuant to s 4(b)(ii) of the 1987 Act.

Entitlement to weekly compensation

Section 33 of the 1987 Act provides:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Section 36 of the 1987 Act states:
“36    Weekly payments during first entitlement period (first 13 weeks)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act states:
“37    Weekly payments during second entitlement period (weeks 14-130)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)     the maximum weekly compensation amount, less the worker’s current     weekly earnings.”
Clause 8 of Schedule 3 to the 1987 Act defines “current weekly earnings”:
“8 Meaning of ‘current weekly earnings’
Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker’s actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
As ss 4 and 9A of the 1987 Act are satisfied, the applicant is entitled to weekly compensation if incapacity for work is established.
The injury occurred on 5 January 2021. CoCs are in evidence covering the period from 13 February 2021 to 28 August 2021. These certify the applicant had no capacity for any work during this period. There has been no challenge to the applicant’s position that she had no capacity for work from 6 January 2021 to 12 February 2021 (that is, before the date of the first CoC).
The applicant submits that in accordance with Dr Mendelsohn’s opinion, she had some capacity for employment from 17 December 2021 onwards, being the date of Dr Mendelsohn’s report. The applicant submits that she had no capacity for work prior to 17 December 2021, evidenced by the fact she was undergoing treatment.
The respondent submits, if the applicant is awarded weekly compensation, that the applicant had some capacity for employment from 24 July 2021, being the date the last CoC was issued by Dr Zeng.
I note Dr Mendelsohn’s opinion in his report dated 17 December 2021 that although the applicant was not fit for her pre-injury duties, she was not totally incapacitated for work, but would need a change of duties to a light duties or sedentary role and should avoid all heavy lifting and straining.
I also note Dr Sheehy’s opinion in his report dated 2 August 2021 that, as of that date, the applicant was unfit for her pre-injury duties as a care worker but was fit for restricted light duties and should initially return to work part-time.
I have considered the applicant’s submissions that she had no work capacity until 17 December 2021, as she was undergoing treatment, however the evidence demonstrates that the applicant’s last consultation with Dr Zeng was on 24 July 2021, her second cortisone injection was on 19 July 2021 and her last consultation with Dr Lee was on 21 October 2021. Dr Lee’s report dated 25 October 2021 does not discuss work capacity and the only report of Dr Lee’s that does comment on work capacity is from 7 July 2021, where Dr Lee stated that she did not believe the applicant was able to return to her previous job and that alternate duties requiring less heavy lifting and repetitive bending and twisting would be more suitable. Having regard to all the evidence, I do not consider the evidence available supports that the applicant had no work capacity until 17 December 2021.
Although I note Dr Sheehy’s opinion from 2 August 2021, having regard to the fact that the CoCs that extend to 28 August 2021, I consider the evidence supports the applicant had no work capacity during the period from 6 January 2021 to 28 August 2021 and I find that the applicant had some work capacity from 29 August 2021 onwards.
The applicant returned to work in late January 2022 in a different role with a different employer (Clinical Laboratories Pty Ltd) as a pathology collector. The applicant states that she had to change her field of work as she was no longer able to do the heavy work required in her previous role as a care worker and the job of pathology collector was light duties, collecting blood. The applicant states she returned to work 4 hours a day, a few days a week.
Payslips from Clinical Laboratories Pty Ltd covering the period from 24 January 2022 to 3 April 2022 and 8 August 2022 to 2 October 2022 are in evidence. Based on the hours recorded on these payslips, I calculate the applicant worked an average of 29 hours per fortnight or 14.5 hours per week as a pathology collector, which accords with the applicant’s evidence of working 4 hours a day, a few days a week. The Clinical Laboratories Pty Ltd payslips show a commencing wage of $23.67 per hour in January 2022 with an additional 25% casual loading, giving an hourly wage of $29.58 per hour.[35]
[35] The payslips from Clinical Laboratories Pty Ltd show the applicant also received additional penalty rates, depending on shifts worked, however I have based my calculations on the standard hourly rate plus casual loading.
Based on the reports of Dr Sheehy and Dr Mendelsohn that the applicant could undertake suitable work and the fact the applicant was able to return to work in January 2022 as a pathology collector working an average of 14.5 hours per week, I find that the applicant had capacity to work 12 hours per week in suitable employment from 29 August 2021 to 23 January 2022, on the basis of 4 hours per day, three days per week.
I do not consider the applicant’s previous role as care worker to be suitable employment for the purposes of calculating the amount the applicant was able to earn from 29 August 2021 to 23 January 2022, due to the nature of the applicant’s incapacity. I consider the role of pathology collector is suitable employment for the purposes of s 32A of the 1987 Act, having regard to the nature of the applicant’s incapacity and the applicant’s age, skills and work experience. I note the commencing wage of $29.58 per hour ($23.67 plus 25% casual loading) earnt by the applicant as a pathology collector and I consider this an appropriate benchmark for the calculation of current weekly earnings. I therefore find, for the purposes of the calculation of weekly compensation, that the applicant was able to earn $354.96 per week (12 hours x $29.58) during the period from 29 August 2021 to 23 January 2022.
The applicant is therefore entitled to weekly compensation under s 33 of the 1987 Act and the payments are to be calculated in accordance with ss 36 and 37 of the 1987 Act as follows, noting PIAWE is agreed as $667.
The first period for the purposes of s 36 of the 1987 Act is from 6 January 2021 to 6 April 2021. The applicant had no capacity and is therefore entitled to weekly payments at the rate of 95% of the PIAWE, as indexed, pursuant to s 36(1) of the 1987 Act.
The second period for the purposes of s 37 of the 1987 Act is from 7 April 2021 to 23 January 2022.
From 7 April 2021 to 28 August 2021, the applicant had no capacity and is therefore entitled to weekly payments at the rate of 80% of the PIAWE, as indexed, pursuant to s 37(1) of the 1987 Act.
From 29 August 2021 to 23 January 2022, the applicant had current work capacity but had not returned to work. The applicant is therefore entitled to weekly payments at the rate of 80% of the PIAWE, as indexed, less current weekly earnings, pursuant to s 37(3) of the 1987 Act.
Applying indexation, the calculations are:

Entitlement Period

Date from – to

PIAWE (indexed)

Able to earn / current weekly earnings

Weekly amount

1^st

6/01/2021 – 31/03/2021

$667.00

$0.00

95% x $667.00 = $633.65

1^st

1/04/2021 – 6/04/2021

$686.21

$0.00

95% x $686.21 = $651.90

2^nd

7/04/2021 – 28/08/2021

$686.21

$0.00

80% x $686.21 = $548.97

2^nd

29/08/2021 – 30/09/2021

$686.21

$354.96

(80% x $686.21) - $354.96 = $194.01

2^nd

1/10/2021 – 23/01/2022

$694.38

$354.96

(80% x $694.38) - $354.96 = $200.54

Compensation for medical, hospital and rehabilitation expenses

Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that-
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Sections 4 and 9A of the 1987 Act are satisfied, and the applicant is therefore entitled to the cost of reasonably necessary medical or related treatment.
I note the applicant has received treatment for her lumbar spine including consultations with Dr Lee, who recommended cortisone injections, physiotherapy and hydrotherapy, and the applicant’s statement also refers to chiropractic treatment. In addition, I note the medical evidence refers to the prescription of analgesic medication.
The applicant seeks a general order under s 60 of the 1987 Act. The respondent submits any award should be limited to expenses incurred in relation to the lumbar spine during the closed period of the claim.
I agree with the respondent’s submission.
I am satisfied that the applicant is entitled to compensation pursuant to s 60 of the 1987 Act for reasonably necessary medical or treatment expenses incurred during the period from 6 January 2021 to 23 January 2022 related to her lumbar spine injury.

SUMMARY

On 5 January 2021, the applicant sustained a personal injury arising out of or in the course of employment, pursuant to s 4(a) of the 1987 Act.
The applicant’s employment was a substantial contributing factor to the injury, pursuant to
s 9A of the 1987 Act.
The applicant is entitled to weekly payments of compensation for the period from
6 January 2021 to 23 January 2022, pursuant to ss 36 and 37 of the 1987 Act, based on a PIAWE of $667 (as indexed) as follows:
(a)    $633.65 per week from 6 January 2021 – 31 March 2021;
(b)    $651.90 per week from 1 April 2021 – 6 April 2021;
(c)    $548.97 per week from 7 April 2021 – 28 August 2021;
(d)    $194.01 per week from 29 August 2021 – 30 September 2021, and
(e)    $200.54 per week from 1 October 2021 – 23 January 2022.
The applicant is entitled to compensation for reasonably necessary medical or related treatment expenses pursuant to s 60 of the 1987 Act related to her lumbar spine injury incurred during the period from 6 January 2021 to 23 January 2022.
The order is set out in the Certificate of Determination.

Entitlement Period	Date from – to	PIAWE (indexed)	Able to earn / current weekly earnings	Weekly amount
1^st	6/01/2021 – 31/03/2021	$667.00	$0.00	95% x $667.00 = $633.65
1^st	1/04/2021 – 6/04/2021	$686.21	$0.00	95% x $686.21 = $651.90
2^nd	7/04/2021 – 28/08/2021	$686.21	$0.00	80% x $686.21 = $548.97
2^nd	29/08/2021 – 30/09/2021	$686.21	$354.96	(80% x $686.21) - $354.96 = $194.01
2^nd	1/10/2021 – 23/01/2022	$694.38	$354.96	(80% x $694.38) - $354.96 = $200.54

[2024] NSWPIC 361

5 July 2024