Silveira v State of New South Wales (Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Silveira v State of New South Wales (Western Sydney Local Health District) [2022] NSWPIC 187
APPLICANT:	Martin Silveira
RESPONDENT:	State of New South Wales (Western Sydney Local Health District)
MEMBER:	Anthony Scarcella
DATE OF DECISION:	29 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Section 4(b)(ii) of the Workers Compensation Act 1987 injury to the cervical spine disputed but injury to the lumbar spine accepted as a result of the ergonomics of the applicant’s working environment; contemporaneous evidence; Department of Education and Training v Ireland; Nguyen v Cosmopolitan Homes; Federal Broom Co Pty Ltd v Semlitch; State Transit Authority v El-Achi; AB v AW; EMI (Australia) Ltd v Bes; Tubemakers of Australia Ltd v Fernandez; Woolworths Limited v Christopher-Coates; Davis v Council of the City of Wagga Wagga; Mason v Demasi; Bugat v Fox; Department of Aging, Disability and Home Care v Findlay; and Hancock v East Coast Timbers Products Pty Ltd considered and applied.
DETERMINATIONS MADE:	1. The applicant suffered an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition in the cervical spine and lumbar spine within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 arising out of or in the course of his employment with the respondent deemed to have occurred on 24 July 2020.
ORDERS MADE:	2. The applicant is granted leave to amend the date of injury pleaded in the Application to Resolve a Dispute to 24 July 2020. 3. The respondent pay to the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $28,600.54 in respect of 12% permanent impairment assessed as a percentage of whole person impairment, attributable to the lumbar spine and cervical spine injuries of 24 July 2020.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Martin Silveira, is a 43-year-old man who was employed by the respondent, the State of New South Wales (Western Sydney LHD) at the Western Sydney Sexual Health Centre as a social worker.
Mr Silveira alleges that he suffered an aggravation, acceleration, exacerbation or deterioration of his cervical spine and lumbar spine due to the conditions of his work, in particular, the ergonomics of his working environment.
On 24 July 2020, Mr Silveira, through his lawyers, claimed permanent impairment compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the claimed injuries to the cervical spine and lumbar spine.[1]
[1] Reply at pages 71-79.
On 8 December 2020, Employers Mutual Limited (EML) acting as the agent of NSW Self Insurance Corporation (icare) issued a dispute notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying any work-related injury within the meaning of sections 4 and 9A of the 1987 Act and denying any entitlement to lump sum permanent impairment compensation under section 66 of the 1987 Act.[2]
[2] Application to Resolve a Dispute at pages 6-14.
Mr Silveira, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 25 January 2022 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming lump sum permanent impairment compensation under section 66 of the 1987 Act as a result of the alleged injuries sustained in the course of his employment with Western Sydney LHD.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether Mr Silveira suffered an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition in his cervical spine deemed to have occurred on 24 July 2020 within the meaning of section 4(b)(ii) of the 1987 Act, and
(b) Mr Silveira’s entitlement to lump sum permanent impairment compensation within the meaning of section 66 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notice referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration by audio visual link on 24 March 2022. Mr Luke Morgan of counsel appeared for Mr Silveira, instructed by Mr Stephen Matthews, solicitor and Mr Ross Hanrahan of counsel appeared for Western Sydney LHD, instructed by Ms Jessica Maiuolo, solicitor.
During the conciliation phase the parties agreed as follows:
(a)     Western Sydney LHD does not dispute injury to the lumbar spine;
(b)     the deemed date of injury under section 16(a)(ii) of the 1987 Act is 24 July 2020 and leave was granted to Mr Silveira to amend the ARD to plead the deemed date, without objection, and
(c)     if there is a finding of injury to the cervical spine on 24 July 2020, Western Sydney LHD consents to paying Mr Silveira $28,600.54 in respect of 12% permanent impairment assessed as a percentage of whole person impairment, attributable to the lumbar spine and cervical spine injuries.

I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were 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 dated 25 January 2022 and attached documents;
(b) Reply to ARD (Reply) dated 17 February 2022 and attached documents;

(c) Application to Admit Late Documents (AALD) lodged on behalf of Mr Silveira dated 8 March 2022 and attached documents, and
(d) a supplementary report by Dr Charles New dated 21 March 2022 that was (electronically) handed up during the conciliation session and the subject of my direction to be uploaded on the Commission’s portal by 30 March 2022.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Martin Silveira’s evidence

In evidence there are statements by Mr Silveira dated 9 July 2021[3] and 25 February 2022[4]. I will now refer to the relevant parts of those statements.
[3] ARD at pages 1-5.
[4] AALD dated 8 March 2022 at pages 4-5.
Mr Silveira stated that he graduated from Fairfield High School in 1996 and that after school he performed retail work. He commenced his studies at university at the age of 23 years. Mr Silveira’s qualifications included a Bachelor of Health Science from the University of Western Sydney, a Master of Public Health from the University of Sydney and a Master of Social Work from the University of Sydney. He successfully completed a Certificate III in nutrition at Petersham TAFE and a Certificate of Attainment in Performing Arts from EORA College.
Mr Silveira stated that, in 2007, he was employed by NSW Family Planning for six months. Between 2007 and 2013, he was employed by Sydney South West Area Health District in the HARP Health Promotion Team at Royal Prince Alfred Hospital (RPAH) campus.
Mr Silveira stated that, on 20 August 2009, during the course of his employment at RPAH, he suffered an injury when he fell down some stairs. At the time of the incident, he was using the fire stairs to get to the ground floor because the building’s elevator was not operational. The stairwell was dark because the lights were not working. He missed a step and fell down two flights of stairs. He injured his neck and back and was off work for about 10 weeks before returning to restricted duties. He was treated conservatively for his injuries.
Mr Silveira stated that, following the accident on 20 August 2009, he required modifications to his working environment and disclosed his requirements in all his job applications, namely, that he needed specific equipment at his workstation because of his ongoing pain which ranged from mild and manageable to severe and debilitating.
Mr Silveira stated that, between 2013 and 2015, he was employed by South Western Sydney Health District as a multicultural Spanish health promotion officer. In 2014, he experienced another incident and made a workers compensation claim as a result of back and leg pain and continued with conservative treatment. He was off work for one week. The pain was mild and tolerable and did not cause him any significant issues.
Mr Silveira stated that, between 2015 and 2017, he was employed at South Western Sydney Primary Health Network as a community engagement coordinator. Between 2017 and 2018, he was employed at NSW Refugee Health Service.
Mr Silveira stated that, in his current role, he is employed as a social worker at Western Sydney Sexual Health Centre where, initially, he commenced on a part-time basis but had been full-time since November 2019. In 2019, he also undertook a part-time contract with South Western Sydney Local Health District Refugee Health Service.
Mr Silveira stated that his current role as a social worker involved providing patients with counselling, education, emotional support, connecting patients to support services or support groups, case management, referrals and advocacy. He worked on internal quality improvement initiatives, attended multidisciplinary meetings and person supervision meetings. He represented the social work team in the wider clinical team. He occasionally performed home visits and outreach to different clinics and services. He had also commenced taking on students in a teaching capacity.
In his supplementary statement, Mr Silveira stated that his role required him to be at a desk working on a computer all day in his office. He was also required to sit on counsellor couches.
Mr Silveira stated that, prior to the commencement of his employment, he completed an application for employment in his current role, wherein he advised of his specific equipment needs, such as, a height appropriate desk, an ergonomic chair and comfortable couches at the correct height with the ability to rotate, stand and stretch every 30 minutes because of his 2009 injury.
Mr Silveira stated that, on commencing his employment at Western Sydney Sexual Health Centre, he was provided with an old small plastic clinical chair. The chair was very uncomfortable and he would frequently roll his back and slide out of it, which caused him back and neck pain.
Mr Silveira stated that he was provided with very old and well-worn counselling couches that were close to the floor and were not the correct height for him or any other staff to sit on. The couches were short and positioned in such a way that he would regularly need to twist and turn his head when speaking to clients.
Mr Silveira stated that his desk consisted of two desks pushed together with a bar in the middle. The desk was too low and his knee would collide with the desk frame multiple times each day. This resulted in pain in his knee as well as a jarring pain to his neck and back. The desk prevented him from being able to turn his whole body, meaning that he was required to move his neck every time he turned to look at the monitor or use his telephone headset. This caused a jarring movement in his neck.
Mr Silveira stated that he spent significant periods of time on the telephone whilst at work. The telephone headset he used was old and did not have a speaker component. Therefore, he was required to use his hand and particularly, his neck to cradle the telephone when speaking and that caused regular pain in his neck.
Mr Silveira stated that his computer monitor was very low and he was required to place it on three or four reems of photocopy paper because his employer did not provide him with a suitable stand or height adjustable monitor at first. As a result, he had to frequently move his neck up and down whilst using his computer in order to see the monitor properly. His role required him to spend a significant amount of time making case notes, managing a lot of emails, research, writing letters and attending to administration work. Such work placed considerable strain on his neck and back.
Mr Silveira stated that his office was next to the toilet and that patients would often enter his room mistakenly when trying to access the toilet. As a result, he would suddenly move his neck to turn around to check on who was entering the room so as to protect confidential matters he was working on and the privacy of patients who were with him.
Mr Silveira stated that he was not provided with a sit/stand desk as recommended in the medical certificate provided by his general practitioner prior to the commencement of his employment. He flagged these issues with his manager at the time but was told by his manager that they were in the process of following it up and that there was a lack of clarity about who was meant to be providing the funding.
Mr Silveira stated that, on 5 April 2019, he experienced sudden severe pain in his lumbar spine and cervical spine during the course of his employment. He also experienced an electrical sensation going down his leg. He completed his last shift of the week, hoping the pain would subside but it did not. He consulted his general practitioner, Dr Harold Pope. He was referred to Associate Professor Mark Sheridan, neurosurgeon. He underwent physiotherapy with Mr Bruno Vidaic of Greenfield Physiotherapy & Hydrotherapy. He underwent chiropractic treatment by Mr Alan Kalamir of Edensor Park Synergy Health.
Mr Silveira stated that he now experiences constant pain in his upper middle back, constant spasms, neck pain and constant lower back pain radiating down his right leg. He has trouble sitting for more than 30 minutes and trouble getting dressed. He uses a chair in the shower to assist him in showering. He is unable to undertake household chores such as cleaning and cooking. He is unable to look after his dog. He is unable to socialise. He cannot participate in any physical activities or have intimate relationships. He undertakes conservative treatment to manage the pain. He takes Panadol and undergoes chiropractic treatment when he can afford it.
In his supplementary statement, Mr Silveira stated that his neck continues to frequently lock up and spasm.
Mr Silveira stated that his employer eventually provided him with a new chair and a Bluetooth headset a month or two after he first reported his injury. The chair provided failed to meet his lumbar health needs and was eventually replaced. The replacement chair was faulty and it took well over six months from the date of the ergonomic assessment to acquire a chair that was adequate and suitable. The delay caused his neck and back symptoms to worsen. He was provided with a new computer in early 2022. His Bluetooth headset recently broke and was replaced by a headset with a cable.
Mr Silveira opined that the incident on 5 April 2019 made the pain in his cervical spine and lumbar spine worse. He experienced a significant exacerbation of his prior injury due to his working environment because his employer did not provide him with the equipment he needed for his condition. It took a long time for his employer to provide him with new equipment, which resulted in his condition deteriorating significantly.

Dr Harry Pope’s certification of workplace ergonomics

In evidence there is a medical certificate issued by Dr Harry Pope, Mr Silveira’s usual general practitioner, in the medical practice known as Our Medical Home Penrith (OMHP) dated 23 December 2018.[5]
[5] AALD dated 8 March 2022 at page 6 and Reply at page 1.
In the medical certificate, Dr Pope certified that Mr Silveira had a medical condition and that he was fit for employment if provided with an ergonomic chair, a height adjustable desk and regular rotation of his duties.

The workstation assessment on 8 March 2019

In evidence, there is an email dated 8 March 2019 from the manual handling program coordinator of Western Sydney LHD in its Risk Management Unit, Ms Judy Jankovics, to Mr Andrew Everingham of Western Sydney LHD. Mr Silveira was copied in.[6]
[6] AALD dated 8 March 2022 at pages 7-8.
The email confirmed that Mr Everingham had requested Ms Jankovics to conduct a workstation assessment of Mr Silveira to assist him in managing his long-term lower back condition.
In the email, Ms Jankovics provided a background that included the following:
(a) Mr Silveira had sustained a significant back injury in 2008/2009 and had been diagnosed with a L5/S1 disc prolapse;

(b)    Mr Silveira participated in all forms of conservative pain management but prolonged sitting continued to aggravate his back pain;
(c)    Mr Silveira provided a medical certificate stating that he required a suitable ergonomic chair and a sit/stand desk to manage his symptoms at work, and
(d)    Mr Silveira reported that he commenced his current role with Western Sydney LHD three weeks prior to her assessment and had reported a flare-up of his back pain due to poor sitting postures at both his computer and when conducting counselling sessions on the low soft vinyl chairs provided.

In the email, Ms Jankovics provided the following workstation observations:
(a)     Mr Silveira’s chair was too small to accommodate his 194cm frame causing him to perch on the seat with limited lumbar support;
(b)     Mr Silveira’s work area was made up of two desks that had been placed to fill the corner of the room resulting in the side panel of one of the desks being located at the corner and blocking him from turning his chair to change the use from one desk to the other;
(c)     Mr Silveira’s keyboard, mouse and single screen met his needs;
(d)     the shelving unit on the wall above Mr Silveira’s computer prevented the elevation of a sit/stand desk unit, and
(e)     Mr Silveira’s counselling couches were extremely low and had limited back support.

In the email, Ms Jankovics provided the following workstation recommendations:
(a)     Mr Silveira required an ergonomic chair with a deeper and wider seat pan to accommodate his tall frame;
(b)     Mr Silveira’s desk unit was not fit for purpose but new desks were being organised;
(c)     Mr Silveira required a sit/stand desk unit to enable him to vary his posture between sitting and standing throughout the day, and
(d)     Mr Silveira’s counselling couches were known to be dated and unsuitable for prolonged sitting and new couches were being investigated.
In evidence, there is an email dated 21 May 2019 from Ms Jankovics to Mr Silveira.[7] Ms Amanda Watson of Western Sydney LHD was copied in.
[7] AALD dated 8 March 2022 at pages 9-10.
In the email, Ms Jankovics identified suitable desks and counselling furniture for Mr Silveira. She suggested that a sit/stand unit could be placed in the corner of the proposed desks but that the wall shelving would need to be removed to allow for the rise of the desk.

The injury notification form

In evidence, there is the work injury notification form dated 30 April 2019.[8]
[8] Reply at pages 101-102.
The injury notification form included Mr Silveira’s personal details.
The date of injury was recorded as Friday, 5 April 2019. The date the employer was notified was recorded as 30 April 2019.
The circumstances of the injury were described as follows:
“Injury how: fell downstairs at work, current work did not supply ergonomic work desk or chair and caused the flare.”[9]
[9] Reply at page 101.
The injury description was one of a lumbar disc injury. Its nature was described as back pain, lumbago and sciatica. The injury mechanism was described as “Falls on same level”.[10] The injury agency was described as “Sitting furniture”.[11]
[10] Reply at page 101.
[11] Reply page 101.
The injury notification form also referred to a medical certificate issued by Dr Pope diagnosing a lumbar disc injury. The period covered in the medical certificate was from 14 April 2019 to 14 May 2019.

The ergonomic assessment report

On 27 September 2019, Ms Alyce Stratti, senior rehabilitation consultant and occupational therapist of Prestige Health Services Australia Pty Limited (PHSA) conducted an ergonomic assessment of Mr Silveira’s workstation at the request of Western Sydney LHD. In evidence, there is an ergonomic assessment report by Ms Stratti dated 14 October 2019.[12] I will now refer to the relevant parts of that report.
[12] Reply at pages 103-107.
Ms Stratti stated that the purpose of the referral was to complete an ergonomic assessment to assess the workstation setup of Mr Silveira’s ergonomic equipment to ensure that the equipment was set up correctly to prevent any aggravation of his lower back injury in the future or the development of new injuries. Ms Stratti recorded a brief history of Mr Silveira’s fall down two flights of stairs at RPAH. A previous disc bulge in his lower back was his main injury, it reportedly never resolved and he continued to live with chronic pain. He slowly returned to work on reduced duties after the RPAH fall. However, he reported ongoing intermittent symptoms.
Ms Stratti’s identification of Mr Silveira’s employment conditions, job description and work environment was consistent with Mr Silveira’s evidence.
Ms Stratti’s findings in respect of Mr Silveira’s chair were that it was of acceptable height and depth. Its seat pan tilt was also acceptable. In respect of its backrest, she recommended an increase in the height of the back support to position lumbar support in the curvature of the spine. In respect of the armrests, she recommended their removal because they were impacting on his ability to position his chair close to the workstation and causing him to lean forward when typing. Whilst Ms Stratti found the chair to be acceptable, she noted that the chair was causing Mr Silveira discomfort in his lower back, upper back, neck and shoulders. Ms Stratti recommended the purchase of a “SitFit Extra High Back Dual Seat”[13] for a two week trial.
[13] Reply at page 106.
Ms Stratti found that Mr Silveira’s desk height, depth and length were acceptable. She found that the keyboard height, keyboard slope and keyboard distance to user were acceptable. She found that the mouse height and mouse to user distance were acceptable. She found that monitor height, monitor to user distance and monitor alignment with user were acceptable. She found that the leg clearance at the workstation, placement of frequently used items and task lighting were acceptable.
As Mr Silveira reported pain symptoms in his bilateral wrists from keying and mousing, Ms Stratti recommended the provision of a wrist rest pad to try and reduce pain symptoms when completing keying tasks.
Ms Stratti recommended that Mr Silveira would benefit from a Bluetooth headset to complete telephone counselling sessions and reduce increasing pain symptoms in his neck and shoulders when completing documentation on his computer whilst on the telephone.

The treating medical evidence

On 26 July 1996, Mr Silveira underwent a CT scan of his cervical spine by Dr Graeme Shirtley, radiologist.[14] Dr Shirtley concluded that the CT scan demonstrated normal intervertebral discs at all levels with no evidence of any prolapse or protrusion. The cervical cord and neural structures defined normally, with no evidence of any compressional displacement and there was a normal amount of epidural fat present. The lateral recesses at all levels appeared clear. There was no bony abnormality. Paravertebral soft tissues defined normally.
[14] ARD at page 68.
On 11 January 2010, Mr Silveira underwent a CT scan of his cervical spine at Alfred Medical Imaging.[15] The CT scan demonstrated that the vertebral body alignment was satisfactory; the vertebral body heights and disc spaces were preserved; there was no significant degenerative disc disease or degenerative change involving the facet joints; and no focal disc protrusion or foraminal narrowing was observed.
[15] ARD at page 70.
On 13 April 2011, Mr Silveira underwent an MRI scan of his cervical spine by Dr Geoffrey Parker, radiologist on the referral of Associate Professor Sheridan.[16] Dr Parker concluded that the C3/4 and C5/6 discs were slightly desiccated but the hydration signal in the other cervical and upper thoracic intervertebral discs were preserved. Axial images demonstrated no evidence of any significant disc protrusion, neural compression or spinal or foraminal stenosis. There was no evidence of bone marrow oedema and there was no pre-vertebral soft tissue abnormality identified.
[16] ARD at pages 73-74.
On 21 April 2011, Mr Silveira underwent a bone scan in respect of his neck and back pain by Dr Grace Yung, radiologist on the referral of Associate Professor Sheridan.[17] Dr Yung found mildly increased tracer uptake at the lower cervical spine anteriorly; mild to moderately increased tracer uptake at the right C5/6 facet joint and at C5/6 and C6/7 interface with mild sclerotic changes at the joint margin; and loss of cervical lordosis. Dr Yung concluded that the findings were consistent with mild to moderate right C5/6 facet joint arthropathy and endplate disease at C5/6 and C6/7.
[17] ARD at page 75.
On 25 May 2011, Mr Silveira consulted Associate Professor Sheridan, who discussed the outcome of the recent bone scan and MRI scan, which he opined showed some damage consistent with his injury (in 2009).[18] The degenerative changes demonstrated on the MRI scan was consistent with Mr Silveira’s complaints of pain. However, the degree of neural compromise was minimal and there was certainly no role for surgery. Associate Professor Sheridan provided Mr Silveira with advice in respect of sensible management of his neck and back.
[18] ARD at page 59.
There are other reports in evidence by Associate Professor Sheridan in 2011, 2012 and 2013.[19] However, those reports are directed to Mr Silveira’s lumbar spine condition.
[19] ARD at pages 58 and 60-65.
In evidence, there are Mr Silveira’s clinical records produced by the medical practice known as OMHP.[20]
[20] ARD at pages 91-167.
The entry in the OMHP clinical records on 23 December 2018 recorded Mr Silveira’s attendance on Dr Pope in respect of, amongst other things, his back and neck injuries and a certificate for the Sex Health Clinic certifying the requirement of an ergonomic chair, a height adjustable desk and regular rotation of duties.[21] Dr Pope issued a medical certificate.[22]
[21] ARD at page 96.
[22] AALD at page 6 and Reply at page 1.
The entry in the OMHP clinical records on 3 February 2019 recorded Mr Silveira’s attendance on Dr Pope in respect of his L5/S1 disc prolapse.[23]
[23] ARD at page 97.
The entry in the OMHP clinical records on 19 February 2019 recorded by Ms Tricia Callow stated that the purpose of Mr Silveira’s visit was for the preparation of a care plan and a diabetes review.[24] The entry also referred to chronic pain management in respect of a prior lower back injury exacerbated by a fall on the previous day, 18 February 2019. There was no reference anywhere else in the evidence to Mr Silveira having exacerbated his lower back symptoms as a result of a fall on 18 February 2019.
[24] ARD at page 98.
The entry in the OMHP clinical records on 3 March 2019 recorded Mr Silveira’s attendance on Dr Pope and mentioned a sacral nerve stimulator but that did not appear to be the reason for the visit.[25]
[25] ARD at pages 98-99.
The entry in the OMHP clinical records on 9 April 2019 recorded Mr Silveira’s attendance on Dr Pope.[26] The reason for the visit was recorded as “lumbar disc bulge”. The entry referred to back pain from years ago with radiation into the right leg. It was noted that he underwent chiropractic treatment that helped. He had previously consulted Associate Professor Sheridan. The injury occurred in 2008/2009 when he fell down stairs in the stairwell. Reference was made to the absence of a standard desk and chair at his new workplace. Dr Pope recorded that Mr Silveira’s back symptoms had become progressively worse since he started his new job. He prescribed Tramadol 50mg capsules. Dr Pope referred him to Associate Professor Sheridan.[27] In the referral letter, Dr Pope requested Associate Professor Sheridan to provide an opinion and management in respect of Mr Silveira’s prior workers compensation injury. Dr Pope described the condition as a flare of Mr Silveira’s back pain with right leg radiation.
[26] ARD at pages 99-100.
[27] ARD at page 87.
The entry in the OMHP clinical records on 14 April 2019 recorded Mr Silveira’s attendance on Dr Pope in respect of a lumbar disc prolapse.[28] Dr Pope noted that Mr Silveira’s workers compensation claim had been rejected on the basis of section 59A of the 1987 Act and that, thus, it was a new claim in respect of an exacerbation of his previous injury. Mr Silveira’s back pain had increased progressively due to poor ergonomic chairs and flared on 5 April 2019. Chiropractic treatment have assisted. He now had a chair but not a stand table.
[28] ARD at page100.
The entry in the OMHP clinical records on 19 May 2019 recorded Mr Silveira’s attendance on Dr John Hillman in respect of neck pain and lumbar back pain.[29] Dr Hillman noted that Mr Silveira required a certificate in respect of the recurrence of the low back and neck injury on 5 April 2019. It was also noted that he had been attending a chiropractor.
[29] ARD at page 101.
On 17 May 2019, Mr Silveira underwent an MRI scan of his lumbar spine by Dr Niranjan Ganeshan, radiologist, who concluded that there was an L5/S1 disc desiccation with an annular tear and posterior central disc protrusion without neural impingement.[30]
[30] ARD at page 90.
On 21 May 2019, Mr Silveira consulted Associate Professor Sheridan. On 23 May 2019, Associate Professor Sheridan reported to Dr Pope that Mr Silveira had undergone a further flare-up of his back injury. He noted that Mr Silveira was going well when he last saw him about six years ago. Associate Professor Sheridan reported that Mr Silveira had experienced some problems with his work space involving prolonged sitting which aggravated his pain. An MRI scan demonstrated the same disc damage L5/S1 that he had seen previously. There was no requirement for surgery or any other intervention. Associate Professor Sheridan spoke to Mr Silveira about sensible back management and that he should continue looking at a more appropriate work space, as well as maintain his fitness. Associate Professor Sheridan expected that the current flare-up of Mr Silveira’s back symptoms would settle with time and he made no further follow-up appointment. No reference was made to any neck symptoms.[31]
[31] ARD at page 66.
On 5 June 2019, Mr Silveira underwent a CT scan of his cervical spine by Dr Pon Ketheswaran, radiologist on the referral of Dr Pope.[32] Dr Ketheswaran found that at C2/3 there was disc desiccation without loss of intervertebral disc height without disc bulge or spinal canal stenosis or narrowing of the exit foramina. The exiting C3 nerve roots were not impinged and the facet joints were unremarkable. In respect of the C5/6, there was a small broad-based disc bulge without spinal canal stenosis with mild narrowing of the neural exit foramina. The exiting nerve roots were not impinged and the facet joints appeared unremarkable. In respect of the C6/7, there was a small broad-based posterocentral disc bulge without spinal canal stenosis or narrowing of the neural exit foramina. The exiting C8 nerve roots were not impinged and the facet joints were unremarkable. Dr Ketheswaran concluded that there were mild spondylotic changes without any nerve root impingement.
[32] ARD at page 156.
The entry in the OMHP clinical records on 18 September 2019 recorded Mr Silveira’s attendance on Dr Pope complaining of now experiencing a burning sensation in the thoracic spine and wrist pain when typing with his wrists extended at his desk.[33] There was no change in his low back and neck symptoms. Dr Pope arranged for a CT scan of the cervical spine and thoracic spine. Dr Pope noted that a new assessment (workplace) was to occur the following Friday.
[33] ARD page 104.
The entry in the OMHP clinical records on 20 November 2019 recorded Mr Silveira’s attendance on Dr Pope complaining of a sore back and advising that he was taking Mobic and Nurofen Plus.[34]
[34] ARD at page 106.
The entry in the OMHP clinical records on 15 December 2019 recorded Mr Silveira’s attendance on Dr Pope complaining of a back ache requiring a lumbar support.[35]
[35] ARD at page 107.
In evidence, there are a number of certificates of capacity issued by general practitioners at OMHP, mainly Dr Pope.[36] All the certificates of capacity referred to the diagnosis of a work-related injury as a lumbar disc injury and falling down stairs at work. All except one of the certificates of capacity referred to the factors affecting recovery as chronic back and neck pain. All except one of the certificates of capacity referred to other considerations as “ergonomic table and chair for follow-up ergonic [sic -ergonomic] review”.
[36] ARD at pages 27-56 and Reply at pages 2-70.
The certificate of capacity dated 14 April 2019, being the first certificate issued in respect of the subject work-related injuries, identified the date of injury as being “2008-2009, exacerbation on 5 April 2019”.[37] The certificate identified other considerations as the provision of an ergonomic table and chair as soon as possible. The description of injury in the certificate was recorded as “fell down stairs at work, current work did not supply ergonomic work desk or chair that caused the flare”.[38] There was no reference to neck symptoms.

The forensic medical evidence

[37] Reply at page 50.

[38] Reply at page 50.

Dr Charles New – 23 June 2020

On 18 June 2020, Mr Silveira consulted Dr Charles New, orthopaedic and spinal surgeon, at the request of his lawyers. In evidence, there are two reports by Dr New dated 23 June 2020.[39] I will now refer to the relevant parts of those reports.
[39] ARD at pages 15-21.
Dr New took a history from Mr Silveira that he sustained an injury in 2009 when he fell down two flights of stairs whilst at work. He was off work for about four weeks before returning to his pre-injury role. Mr Silveira experienced another incident in 2014 where his back pain was worse than his leg pain and he was off work for about one week. Between 2009 and 2014, Mr Silveira experienced intermittent pain predominantly in his back and right leg. Prior to the 2009 incident, he had experienced intermittent back pain since about 2003. Mr Silveira also experienced cervical spine pain dating back to an investigation in 1996. However, it was only after his fall in 2009 that he suffered debilitating cervical spine pain without radicular pain in his arm.
Dr New reported that, on 5 April 2019, Mr Silveira experienced considerable pain and was reviewed by Dr Pope. He was reviewed by Associate Professor Sheridan in 2009 and again in 2019. Conservative management was recommended and he returned to work in 2019. Dr Pope recommended appropriate ergonomic equipment at Mr Silveira’s workplace. Dr New reported that Mr Silveira had been employed by Western Sydney LHD for 18 months.
Dr New noted that Mr Silveira was 194cm tall and weighed 100kg.
Dr New reported that Mr Silveira described the pain as an aching, stabbing sensation in the lumbosacral junction as well as the cervical spine region with referred pain into his right leg posterolateral to his knee, exacerbated by prolonged sitting and recurrent lifting and bending.
On examination of Mr Silveira’s cervical spine, Dr New reported that Mr Silveira complained of tenderness over the cervicothoracic junction. Dr New observed a loss of about 25% of motion in flexion, extension, lateral bending and rotation. Upper limb examination was unremarkable neurologically.
Dr New provided the following table of investigations reviewed by him:

DATE

INVESTIGATION

COMMENTS

28/09/2003

MRI lumbar spine

Report only - L5/S1 disc dehydration.

02/04/2007

MRI lumbosacral spine

Report only - disc prolapse L5/S1.

11/01/2010

CT scan cervical and lumbar spine

Report only - small disc prolapse L5/S1.

21/04/2011

Technetium bone scan

No evidence of fracture, cervical spondylosis C5/6 and C6/7.

16/02/2012

MRI lumbar spine

Disc bulge L5/S1.

09/04/2012

CT guided injection

Right L5/S1 transforaminal steroid injection

21/10/2013

MRI lumbar spine

Disc bulge L5/S1.

11/05/2018

CT scan cervical spine

Loss of cervical lordosis, cervical spondylosis C6/7.

17/05/2019

MRI lumbar spine

Loss of lumbar lordosis, dehydration lower lumbar discs, disc bulge L5/S1.

Dr New diagnosed cervical and lumbar spondylosis and referred pain into the right leg. He acknowledged that Mr Silveira had experienced neck and back pain in 2009 prior to the incident on 5 April 2019. However, he opined that Mr Silveira had suffered a significant exacerbation since that time.
Dr New opined that Mr Silveira’s prognosis is poor because the natural history of both his cervical and lumbar spondylosis is that it will become progressively worse with time and he may develop radiculopathy on the left, complicating eventual diabetic neuropathy.
Dr New reported that Mr Silveira was compliant and cooperative throughout the taking of the history and throughout the examination. He stated that there was no suggestion of overreaction or exaggeration.
In the shorter of his two reports dated 23 June 2020, Dr New assessed Mr Silveira’s whole person impairment at 12% (lumbar spine – 5%; cervical spine – 5%; impact of activities of daily living 2%). The assessment of 12% whole person impairment included a one tenth deduction under section 323 of the 1998 Act for the lumbar spine and the cervical spine.

Dr Robert Breit – 26 October 2020

On 14 October 2020, Mr Silveira consulted Dr Robert Breit, orthopaedic surgeon, at the request of Western Sydney LHD’s lawyers. In evidence, there is a report by Dr Breit dated 26 October 2020.[40] I will now refer to the relevant parts of that report.
[40] Reply at pages 113-119.
Dr Breit reported that Mr Silveira had been a social worker employed at a variety of NSW health institutions and commenced employment with Western Sydney LHD in February 2019.
Dr Breit reported that Mr Silveira claimed that his problems commenced after a fall at RPAH in 2009 when he slipped and fell down two flights of stairs. Thereafter, he had undergone a variety of therapies including acupuncture, chiropractic treatment, physiotherapy, Pilates, yoga and hydrotherapy. In 2013 he was placed on an exercise program. He continued to experience back pain, some right leg pain and neck pain but continued working. The bouts of pain were not severe enough to cause him to cease work. In 2014, without any specific precipitating event, he experienced a marked flare-up of pain and underwent some self-funded treatment.
Dr Breit reported that Mr Silveira claimed that, when he moved to Western Sydney LHD on his pre-employment screening, he informed them of the specialised equipment he would require in respect of his back disability. The equipment was not provided. Mr Silveira described an L-shaped desk with a crossbar at the angle where he would sit in the corner. He was provided with a small chair and every time he turned, he knocked himself and slid out of the chair. Mr Silveira’s back pain slowly worsened and he complained to his manager about the lack of appropriate office equipment.
Dr Breit reported that Mr Silveira explained that, on 5 April 2019, his pain became more severe and he consulted his general practitioner. Mr Silveira claimed that his back and inappropriate office equipment also affected his neck and he commenced to experience pain in his mid-back. He continued to work on a full-time basis. When he went to claim for an exacerbation, he was told that he would have to make a new claim and liability was then denied. Mr Silveira’s office equipment had only recently been upgraded.

Dr Breit reported that Mr Silveira’s present complaints at the base of the mastoid process on either side as being the site of neck pain when it occurred. Mr Silveira demonstrated a right lateral tilting posture but the rest of the time, neck movements were alright.
On examination of Mr Silveira’s cervical spine, Dr Breit observed that his cervical movements were half normal. Neurologically, there was normal power, tone, sensation and reflexes.
Dr Breit only referred to two investigations, namely, the CT scan of the cervical spine dated 11 May 2018, which he interpreted as being normal; and the MRI scan of the lumbar spine dated 18 May 2019.
Dr Breit acknowledged that Mr Silveira presented in a straight forward manner. However, he observed that his cervical and thoracic restrictions were marked and symmetrical.
In respect of Mr Silveira’s cervical spine, Dr Breit opined that there was nothing to suggest an injury. There was no evidence of underlying pathology. However, he conceded that inappropriate ergonomics can lead to some neck discomfort. Dr Breit recommended a nuclear medical scan and SPECT CT scan to ascertain whether there was any evidence of facet disease that may respond to injection or radiofrequency. Dr Breit opined that Mr Silveira would be best served by hydrotherapy. Nothing would resolve his problems because the changes are irreversible. The idea is to make Mr Silveira more comfortable and allow him to maintain the current position.
In respect of prognosis, Dr Breit opined that Mr Silveira’s condition would settle from the subject event with appropriate management but that further recurrences were inevitable.
Dr Breit assessed Mr Silveira’s whole person impairment at 7% (lumbar spine – 5%; cervical spine – 0%; impact of activities of daily living 2%). However, he opined that his assessment of whole person impairment related to the original injury in 2009 and that the episode of 5 April 2019 did not lead to any impairment as such. He added that the vagaries of the workers compensation system resulted in the current “new” claim.[41]
[41] Reply at page 118 at [14].

Dr Charles New – 26 March 2022

On 21 March 2022, Mr Silveira again consulted Dr New at the request of his lawyers. In evidence, there is a supplementary report dated 21 March 2022 .[42] I will now refer to the relevant parts of that supplementary report.
[42] AALD dated 24 March 2022.
Dr New acknowledged that he had been provided with a copy of Dr Breit’s report dated 26 October 2020. Dr New commented that Dr Breit was obviously entitled to his opinion and added that Dr Breit was a clinically retired orthopaedic surgeon specialising in shoulder conditions. Dr New directed attention to his qualifications as an orthopaedic and spinal surgeon, Adjunct Professor – Surgery University of Sydney – Nepean Clinical School and Conjoint Associate Professor – Surgery Western Sydney University. Dr New added that he believed that he was capable of taking an accurate history, performing an accurate examination and interpreting his findings on the basis of those as to issues of causation.
In a somewhat roundabout fashion, Dr New opined that, in respect of Mr Silveira’s cervical spine, the main contributing factor to the acceleration and exacerbation of symptoms was related to his work environment with Western Sydney LHD.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will summarise the parties’ principal submissions.

Western Sydney LHD’s submissions

I will now refer to Western Sydney LHD’s principal submissions.
Western Sydney LHD maintained the dispute in respect of Mr Silveira’s cervical spine because of the absence of any material that was persuasive on the balance of probabilities that the neck was involved at all in any events concerning the ergonomic set up in the workplace between February and March 2019.
There was very little information available about Mr Silveira’s injury to his neck and back on 20 August 2009 whilst employed at RPAH, where he fell down stairs resulting in him being off work for about 10 weeks. There was no information as to whether Mr Silveira made a claim for whole person impairment in respect of the injuries. In this regard, Western Sydney LHD was at a disadvantage.
The evidence is unclear as to when Mr Silveira commenced his employment with Western Sydney LHD. The date of the commencement of his employment is crucial in this case given the history taken by his general practitioner of his overall health condition. Mr Silveira’s evidence was that he commenced employment in about February 2019. The first complaint about back problems to Dr Pope in the relevant period was an entry in the OMHP clinical records dated 3 February 2019. However, it is uncertain as to whether that complaint occurred before or after the commencement of his employment with Western Sydney LHD.
The entry in the OMHP clinical records on 19 February 2019 recorded Mr Silveira’s complaints of chronic pain management in respect of a previous L4/5 injury that was exacerbated by a fall on 18 February 2019. Mr Silveira gave no evidence in respect of a fall on 18 February 2019, nor is it explained anywhere. On that basis, the Commission cannot accept what Mr Silveira says about anything that happened at work.
The entry in the OMHP clinical records on 9 April 2019 recorded Mr Silveira’s report of back pain from years ago. The entry on 14 April 2019 recorded that Mr Silveira’s workers compensation claim was rejected and that there was a new claim for an exacerbation of the previous injury. The back pain flared on 5 April 2019 and was progressive because of poor ergonomic chairs. There was no mention of the neck in any of the entries referred to above.
The entry in the OMHP clinical records on 19 May 2019 recorded a recurrence of low back and neck injury on 5 April 2019. It was not until the entry on 18 September 2019 that a reference was made to an ergonomic desk and wrist pain whilst typing with extended wrists. Mr Silveira was referred for a CT scan of his cervical spine and thoracic spine. There is no cervical spine CT scan report in evidence to satisfy the Commission that there was any pathology in the neck at about the time of the pleaded injury. There was no objective radiological evidence of any problem with Mr Silveira’s neck.
The entry in the OMHP clinical records on 20 November 2019 referred to a sore back but made no mention of the neck. The entry on 15 December 2019 recorded backaches and the need for a lumbar support. There was no mention of neck symptoms.
A CT scan of Mr Silveira’s cervical spine on 26 July 1996, demonstrated normal intervertebral discs at all levels without evidence of any prolapse or protrusion, compression or displacement. A CT scan of Mr Silveira’s cervical spine on 11 January 2010 revealed that there was no significant degenerative disc disease; no degenerative change involving the facet joints; no focal disc protrusion; and no neural foraminal narrowing. An MRI scan of Mr Silveira’s cervical spine on 13 April 2011 identified no abnormality in the cervical spine apart from minimal disc desiccation at C3/4 and C5/6. The bone scan report dated 21 April 2011 revealed a finding that was consistent with mild to moderate right C5/6 facet joint arthropathy and endplate disease at C5/6 and C6/7, which could only be related to Mr Silveira’s 2009 injury.
Dr Sheridan reported that Mr Silveira had experienced multiple flare-ups of pain, mainly in his back, over the years.
The certificates of capacity issued by Dr Pope between April and October 2019 certified that Mr Silveira had capacity for some type of work for normal hours.
A finding of injury to the cervical spine by way of aggravation at the time claimed on the basis of the evidence referred to above, would be intuitive and speculative.
Dr New provided no satisfactory explanation for his opinion that Mr Silveira had sustained an aggravation, acceleration, exacerbation or deterioration of his cervical spine due to the conditions of his employment with Western Sydney LHD and that his employment was the main contributing factor because of his work environment. Dr New did not offer any basis for his opinion, except to say that it was based on the history given by Mr Silveira. The history given by Mr Silveira is less than reliable.
When one looks at the nature of the work environment, Mr Silveira has given some examples of what he says were provocative features in relation to his neck flexion or movement but he did not explain how. Mr Silveira did not convey to Dr New the manner of movement that provoked neck pain. The occupational postures did not correlate with the body part complained of. Dr New’s opinion is not particularly useful in that regard either.
Mr Silveira did not refer to his neck when he provided a history to Dr Breit about the alleged conversation that took place during his pre-employment screening in respect of the specialised equipment he would need in relation to his back disability. Mr Silveira gave no history of how his workstation affected his neck or by what means his neck was involved by way of postural challenges, bearing in mind his longstanding pre-existing condition.
Dr Breit opined that there was nothing to suggest an injury to the cervical spine. There was no evidence of underlying pathology. However, Dr Breit quite properly conceded that inappropriate ergonomics can lead to some neck discomfort.
The Commission should find that the available evidence is very much after the event and an analysis in retrospect of what Mr Silveira perceived as attributable to his workstation. There is no evidence of pathology in the neck. Nothing is known about the amount of compensation he received for the 2009 injury. There is no justification in providing Mr Silveira with any further permanent impairment compensation in respect of his neck in the context of his history, having sustained a significant injury in 2009.

Mr Silveira’s submissions

I will now refer to Mr Silveira’s principal submissions.
The Commission ought not be concerned that Western Sydney LHD had agreed that, if there is a finding of injury to Mr Silveira’s cervical spine, then there is a 12% whole person impairment payable. It is not a matter the Commission needs to consider in this case in respect of the issue of injury to the cervical spine.
If Western Sydney LHD was concerned about any deductible proportion of whole person impairment under section 323 of the 1998 Act and the pathology in the cervical spine, it should have assembled some medical evidence because these are medical questions. There should have been medical evidence to deal with these arguments and provide a basis for its submissions rather than making broad submissions relative to matters going to pathology, causation and the relevance or otherwise of the start date of employment. These are all matters that should have been dealt with by a medical expert.
If Western Sydney LHD was concerned about any deductible proportion of whole person impairment under section 323 of the 1998 Act and the pathology in the cervical spine, it should not have conceded the 12% whole person impairment if there was a finding of injury to the cervical spine.
The Commission should confine itself to the analysis of the material before it and determine whether there was an aggravation of a pre-existing condition of the cervical spine as a result of the workplace issues described by Mr Silveira in his evidence, being workplace issues that Western Sydney LHD has not disputed. Western Sydney LHD did not put on any evidence to suggest that what Mr Silveira said about the workplace or his conversations in respect of his ergonomic requirements were incorrect.
Dr Pope’s medical certificate dated 23 December 2018, identified Mr Silveira’s ergonomic requirements to deal with the chronic problems he had with his neck and back.
Dr New reported that Mr Silveira is 194cm tall, that is, 6’4”. Mr Silveira described his work space as being very cramped. He had to work crouched over, looking down whilst sitting on a very small old clinical chair. His desk consisted of two old desks pushed together with a bar in the middle. The counselling couches were close to the floor and not the correct height for him or other staff. He was not provided with a sit/stand desk as recommended by his general practitioner in the medical certificate prior to the commencement of his employment. He had flagged these issues to his manager at the time.
PHSA’s ergonomic assessment report by Ms Stratti, funded by EML, provided a series of recommendations to make the workstation suitable for Mr Silveira.
The clinical records in evidence revealed that Mr Silveira has been the subject of significant treatment to his neck and back over the years. At no point did Mr Silveira seek to hide his prior neck and back problems. The fact that Mr Silveira had a bad neck and a bad back when he commenced his employment with Western Sydney LHD is not in issue. He made the employer aware of those problems. However, the employer required him to work in a situation that made the existing chronic condition of his neck and back worse and the assessment relative to that was made by Dr New.
Mr Silveira’s case is advanced based on Dr New’s opinions. Dr New’s first report provides the Commission with sufficient comfort to be satisfied that the exacerbation and aggravation referred to by him is the main contributing factor to Mr Silveira’s condition as it presently presents.
When one considers Dr Breit’s opinion closely, one can draw from it an acceptance by Dr Breit that, when one has an individual of Mr Silveira’s type working in the circumstances of his workstation, it was entirely plausible that he might present with the complaints he had made.
There was no basis for Western Sydney LHD’s oblique attack on Mr Silveira’s motivation in bringing his case. Mr Silveira commenced working for this employer and informed it of his restrictions. The employer employed him knowing he had those restrictions. He developed a condition as a result of his employment and to his credit, he remained in full-time employment since suffering the injury. The employer has funded changes to his workplace to avoid the aggravating effect of the work injury.
Even without Dr New’s evidence, Dr Breit provided a sufficient basis together with the other evidence for the Commission to be satisfied that the relevant causal connection exists. Dr Breit conceded that there was a relevant causative path that could be followed between what Mr Silveira complained about in the workplace and his symptomatology. However, he did not accept that there was any permanent consequence of it.
EMI (Australia) Ltd v Bes, (Bes)[43] dealt with issues going to medical causation. The thrust of the decision was that one does not need to have an exact medical certitude proved to a scientific standard to have a connection between a work injury and the matters advanced from a causation point of view.
[43] EMI (Aust) Ltd v Bes [1970] 2 NSWLR 238.
Tubemakers of Australia Ltd v Fernandez (Fernandez)[44] was quoted with approval in a decision by President Keating in Woolworths Limited v Christopher-Coates (Christopher-Coates)[45] and is authority for the proposition that, where a medical expert talks in terms of only a possible view of something that might have been relevant, then it is open to a decision maker, with reference to all of the other evidence in the case, to decide that it is the probable view.
[44] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720.
[45] Woolworths Limited v Christopher-Coates [2014] NSWWCCPD 14.
The OMHP clinical records, commencing prior to the onset of Mr Silveira’s acute symptoms and thereafter during the relevant period, can give the Commission confidence in respect of the relationship of the complaints of neck and back pain to his work.
Dr Breit reported that Mr Silveira presented in a straight forward manner. However, his cervical and thoracic restrictions were marked and symmetrical.
In respect of the certificates of capacity in evidence, the initial certificate did not refer to Mr Silveira’s neck at all. However, the certificates thereafter (from 19 May 2019 onwards) referred to the factors affecting recovery as being chronic back and neck pain.
Western Sydney LHD accepted injury to the back but not the neck as a consequence of the same mechanical process. It cannot provide any credible explanation as to why the back would be affected by the ergonomic process and not the neck in circumstances where Mr Silveira had complained about it; where the ergonomic expert had been called in to address the issue; where the general practitioner had referenced issues in respect of the neck from the outset; and where the neck consistently appeared in the medical certification.
The whole factual matrix along with the opinions of Dr Breit and Dr New, would provide the Commission with more than enough comfort that the relevant relationship between the neck condition and the nature of the work environment, on the background of a significant degenerative condition affecting the cervical spine in a man of tall stature, was such as to give rise to the injury to the neck as identified by Dr New and inferentially accepted by Dr Breit.

Western Sydney LHD’s submissions in reply

I will now refer to Western Sydney LHD’s submissions in reply.
PHSA’s ergonomic assessment report by Ms Stratti determined that the monitor on Mr Silveira’s desk was of acceptable height, distance to user and alignment with user. The keyboarding posture and sitting posture were not acceptable and that was why liability was accepted in respect of the back. There was no persuasive evidence that related the neck to the circumstances of this claim.
The certificates of capacity were not referring to any recent aggravation, they were referring to the 2009 event, which Dr Breit opined was the main contributing factor.
Dr Breit did not have the benefit of the clinical records and so, was not aware of the entry in the clinical records on 19 February 2019 reporting Mr Silveira’s fall on 18 February 2019.
One cannot be actually satisfied that the main contributing factor to Mr Silveira’s neck condition was what occurred during his employment with Western Sydney LHD rather than the 2009 related condition that had been affecting him right up until December 2018.

FINDINGS AND REASONS

Did Mr Silveira suffer an injury to his cervical spine?

The legislation and legal principles

Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines injury as a personal injury arising out of or in the course of employment. Section 4(b)(ii) of the 1987 Act provides that “injury” includes a “disease injury”, which means 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.
The onus of establishing injury falls on Mr Silveira and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[46] (Ireland) and Nguyen v Cosmopolitan Homes[47] (Nguyen).
[46] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[47] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
As to the meaning of disease, in Federal Broom Co Pty Ltd v Semlitch[48] (Semlitch), Kitto J said:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason I can see for reading it in the present context as not extending to mental illness.”[49]
This decision was applied by the Court of Appeal in Cook v Midpart Pty Ltd t/as McDonalds Foster[50].
[48] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
[49] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632.
[50] Cook v Midpart Pty Ltd t/as McDonalds Foster [2008] NSWCA 151.

In Semlitch, Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.[51]
[51] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
In Semlitch Windeyer J said:
“The question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[52]
[52] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 639.
In Semlitch, Windeyer J also posed the following questions:
“Was the applicant suffering from a disease? If so, was there an aggravation, acceleration, exacerbation or deterioration of it? If so, was her (or his) employment a contributing factor? If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”[53]
It should be noted that for injuries received on or after 19 June 2012, employment must be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
[53] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 638.
Discussing whether there was “aggravation, acceleration, exacerbation or deterioration” Windeyer J said in Semlitch:
“… the answer depends upon whether for the sufferer the consequences of his affliction have become more serious”.[54]
[54] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 637.
Burke CCJ, applying Semlitch in Cant v Catholic Schools Office[55] (Cant) said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”[56]
[55] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88.
[56] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 at [17].
The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond[57] (Raymond) applying Semlitch and Cant. In Raymond, Roche ADP (as he then was) was satisfied that, on the whole of the evidence, it was open to the Arbitrator to conclude that the worker suffered an aggravation of his occupational asthma, in the sense that the symptoms increased and became more serious while employed.[58]
[57] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132.
[58] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132.
Roche DP in Kelly v Western Institute NSW TAFE Commission[59] (Kelly), citing Semlitch, said:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the applicant is increased or intensified by an increase or intensifying of symptoms.”[60]
[59] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71.
[60] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66].
Section 4(b)(ii) of the 1987 Act requires that the employment must be the main contributing factor to the injury, namely, the aggravation, acceleration, exacerbation or deterioration of the disease condition.[61] The word “main” in the phrase ”main contributing factor” means “chief” or “principal”.[62]
[61] Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013: 8 April 2014).
[62] Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147] and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248 at [78]-[88].
Roche DP in State Transit Authority v El-Achi[63] (El-Achi) said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”[64]
[63] State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi).
[64] State Transit Authority v El-Achi [2015] NSWWCCPD 71 at [72].
In AB v AW[65], Snell DP agreed with the above quoted passage in El-Achi and observed that the following could be taken from the relevant cases:
“(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[66]
[65] AB v AW [2020] NSWWCCPD 9.
[66] AB v AW [2020] NSWWCCPD 9 at [78].
In Bes, the Court of Appeal indicated that if medical science was prepared to say that there was a possible connection between events, the incapacity and loss, then the court, after examining the lay evidence, may decide that it is probable. It is only when medical science denies that there is such a connection that a judge is not entitled to act on his own intuitive reasoning.
In Fernandez, Murphy J stated:
“If expert evidence establishes that the relationship is possible (that is, it is a reasonable hypothesis or one consistent with scientific knowledge) the proof to the required standard (civil or criminal) that the relationship existed in the case under consideration may then be achieved by further evidence (expert or non-expert).”[67]
[67] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 725.
In Christopher-Coates, President Keating said:
“Where a medical expert talks only in terms of a ‘possible’ view, or something that ‘might’ have been relevant, then the Arbitrator was entitled with reference to all of the other evidence in the matter to decide that is the probable view. This then is a factual analysis and merely because Woolworths disagrees with that analysis is not a proper basis for appeal (EMI (Aust) Ltd v Bes[1970] 2 NSWR 238 (Bes); Tubemakers of Australia Ltd v Fernandez [1975] 2 NSWLR 190 (Tubemakers); Morro v London Assurance[1972] WCR (NSW) 100; Australian Padding Co Pty Ltd v Zarb (1996) 13 NSWCCR 365).”^[68]
[68] Woolworths Limited v Christopher-Coates [2014] NSWWCCPD 14 at [132].

Consideration and findings

Whilst his evidentiary statements lacked precision in respect of the identification of the dates of certain events, I accept Mr Silveira as a witness of truth, who did his best to provide a history of his injuries, his treatment and his complaints of symptoms to his various treating doctors and the forensic medical specialists. The histories he provided of injury, treatment and complaints of symptoms were, in the main, consistent. Dr Breit reported that Mr Silveira presented in a straightforward manner. Dr New reported that there was no suggestion of overreaction or exaggeration on Mr Silveira’s part.
Mr Silveira presented as a person with a strong work ethic. On 5 April 2019, despite having experienced a sudden severe increase in pain in his lumbar spine and cervical spine during the course of his employment with Western Sydney LHD, to his credit, he remained in full-time employment.
The unchallenged evidence is that, on 20 August 2009, during the course of his employment at RPAH, he suffered injuries to his back and neck when he fell down some stairs. Thereafter, he developed chronic symptoms in his back and neck that waxed and waned, in that, he experienced flare-ups from time to time but he was able to continue working at his various places of employment with minimal time off work.
I accept Mr Silveira’s evidence that prior to the commencement of his employment with Western Sydney LHD, he completed an application for employment in his current role, wherein he advised of his specific equipment needs, such as, a height appropriate desk, an ergonomic chair and the ability to rotate, stand and stretch every 30 minutes because of his 2009 injury. Mr Silveira’s evidence in this regard was supported by the medical certificate issued by Dr Pope dated 23 December 2018 and the entry in the OMHP clinical records on 23 December 2018.
Whilst the date of the commencement of Mr Silveira’s employment with Western Sydney LHD was unclear on his evidence, Ms Jankovics identified the commencement of his employment as being about three weeks prior to her workstation assessment on 8 March 2019. Accordingly, it would appear that Mr Silveira commenced his employment with Western Sydney LHD sometime in February 2019.
The entry in the OMHP clinical records on 3 February 2019 stated that the reason for Mr Silveira’s visit related to a lumbar disc prolapse. However, it also recorded an issue in relation to a cough, care duties in respect of his father, the issue of a Centrelink certificate and a certificate in respect of back problems at L5/S1. The entry lacked detail.
The entry in the OMHP clinical records on 19 February 2019 recorded by Ms Callow stated that the purpose of Mr Silveira’s visit was for the preparation of a care plan and a diabetes review. The entry also referred to chronic pain management in respect of a prior lower back injury exacerbated by a fall on the previous day, 18 February 2019. There was no reference anywhere else in the evidence to Mr Silveira having exacerbated his lower back symptoms as a result of a fall on 18 February 2019. Nor was the fall mentioned again in the clinical records. I find that if, in fact, Mr Silveira did have a fall on 18 February 2019, it was of little medical significance in this case.
The entry in the OMHP clinical records on 3 March 2019 recorded Mr Silveira’s attendance on Dr Pope and mentioned a sacral nerve stimulator. However, that did not appear to be the reason for the visit. The entry lacked detail.
Western Sydney LHD sought in its submissions to persuade me that the OMHP clinical records entries on 3 February 2019, 19 February 2019 and 3 March 2019 would cause me not to accept what Mr Silveira said happened to him at work. Likewise, the absence of the recording of any complaint of neck pain in the OMHP clinical records entries on 9 April 2019 and 14 April 2019 until 19 May 2019 was cause for concern. I am unpersuaded by the submission.
Histories in medical records are often used to attack the credit of a worker. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga[69]; and applied in King v Collins[70] and Mastronardi v State of New South Wales[71]. Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[72]
[69] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[70] King v Collins [2007] NSWCA 122.
[71] Mastronardi v State of New South Wales [2009] NSWCA 270.
[72] Mason v Demasi [2009] NSWCA 227.
The caution referred to above was confirmed by Roche DP in Winter v NSW Police Force[73] as follows:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122 at [34-36]).”[74]
[73] Winter v NSW Police Force [2010] NSWCCPD 12.
[74] Winter v NSW Police Force [2010] NSWCCPD at [183].
The absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence: Owen v Motor Accidents Authority of NSW[75]and Bugat v Fox.[76] While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before a Member can feel actual persuasion about the existence of a fact in issue: Department of Aging, Disability and Home Care v Findlay[77].
[75] Owen v. Motor Accidents Authority of NSW [2012] NSWSC 650 at [52].
[76] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].
[77] Department of Aging, Disability and Home Care v Findlay [2011] NSWWCCPD65.
I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard and considered all the evidence.
Mr Silveira’s evidence in respect of his ergonomically inadequate workstation was unchallenged. In fact, his evidence in this regard was largely supported by Ms Jankovics, who is Western Sydney LHD’s manual handling program coordinator in its Risk Management Unit.
The provision of an ergonomic chair took place reasonably promptly following Ms Jankovics’ workstation assessment on 8 March 2019. However, the suggested recommendations in respect of the sit/stand desk and counselling couches were still unresolved by the time of Ms Jankovics’ email to Mr Silveira dated 21 May 2019. Between 8 March 2019 and at least, 21 May 2019, Mr Silveira continued to work at his ergonomically inadequate workstation.
The PHSA ergonomic assessment report dated 14 October 2019 confirmed the need for modification of work practices including the frequency of micro-breaks; keyboarding posture; sitting posture; telephone posture; and alternating tasks. Sometime between 21 May 2019 and 14 October 2019, Mr Silveira was provided with a sit/stand workstation with an inbuilt platform to position his monitor at an appropriate height. However, the PHSA ergonomic assessment report confirmed that there were still ergonomic issues at his workstation that required attention. He had not been provided with a Bluetooth headset to complete telephone counselling sessions and to reduce increasing pain symptoms in his neck and shoulders whilst completing the necessary client documentation on his computer.
Western Sydney LHD submitted that it was not until the entry in the OMHP clinical records on 19 May 2019 that reference was made to an ergonomic desk. This submission was incorrect. The injury notification form dated 30 April 2019 referred to the failure to supply an ergonomic work desk or chair, which caused the flare-up of pain. Further, the certificate of capacity dated 14 April 2019, being the first certificate issued in respect of the subject work-related injuries, identified other considerations as the provision of an ergonomic table and chair as soon as possible. The description of injury in the certificate was recorded as a fall down stairs at work in the past and that Mr Silveira’s current employer did not supply an ergonomic work desk or chair, that led to a flare-up of pain.
Western Sydney LHD submitted that there was no post 5 April 2019 CT scan report in evidence. This submission was incorrect. On 5 June 2019, Mr Silveira underwent a CT scan of his cervical spine by Dr Ketheswaran on the referral of Dr Pope. The findings and conclusions in respect of the CT scan have been referred to above.
Western Sydney LHD submitted that, whilst Mr Silveira had provided examples of what he said were provocative features at his workstation in relation to his neck flexion or movement, he did not explain how the movement provoked neck pain. I reject this submission.
Mr Silveira stated that the chair of his workstation was very uncomfortable and he would frequently roll his back and slide out of it, which caused him back and neck pain. The counselling couches were short and positioned in such a way that he would regularly need to twist and turn his head when speaking to clients. He would jar his neck and back when he collided with the desk frame at his workstation. The desk prevented him from being able to turn his whole body and so, he was required to move his neck every time he turned to look at the monitor or used his telephone headset. This caused a jarring movement in his neck. He spent significant periods of time on the telephone, which he cradled between his neck and shoulder whilst typing notes, resulting in neck pain. He frequently moved his neck up and down whilst using his computer in order to see the monitor properly. He would have to suddenly move his neck to turn around to check on who was entering his room. I accept Mr Silveira’s evidence in this regard.
I accept Mr Silveira’s evidence that, on 5 April 2019, he experienced sudden severe pain in his lumbar spine and cervical spine during the course of his employment with Western Sydney LHD and that he now experiences constant neck pain, spasms, pain in his upper middle back and low back pain radiating down his right leg. I accept his evidence that his neck continues to frequently lock up and spasm.
Mr Silveira consulted Associate Professor Sheridan on 21 May 2019 and that consultation focused on the condition of his lumbar spine, as did the majority of his consultations in 2011, 2012 and 2013. I do not find that the absence of the reference to neck symptoms in Associate Professor Sheridan’s report is cause for concern for the reasons already stated above.
Dr Breit opined that there was nothing to suggest an injury to Mr Silveira’s cervical spine as there was no evidence of underlying pathology. Dr Breit did not have the benefit of Dr Ketheswaran’s CT scan report dated 5 June 2019 where, amongst other things, the radiologist found disc desiccation without loss of intervertebral disc height without disc bulge or spinal canal stenosis or narrowing of the exit foramina at C2/3; the exiting C3 nerve roots were not impinged and the facet joints were unremarkable; a small broad-based disc bulge without spinal canal stenosis with mild narrowing of the neural exit foramina at C5/6, the exiting nerve roots were not impinged and the facet joints appeared unremarkable; there was a small broad-based posterocentral disc bulge without spinal canal stenosis or narrowing of the neural exit foramina at C6/7; and the exiting C8 nerve roots were not impinged and the facet joints were unremarkable. Dr Ketheswaran concluded that there were mild spondylotic changes without any nerve root impingement.
Dr Breit did not have the benefit of the CT scan report dated 11 January 2010 or the bone scan report dated 21 April 2011. Dr New did.
Dr Breit conceded that inappropriate ergonomics could lead to some neck discomfort but did not accept that it resulted in any permanent consequence. He recommended further investigation but was of the opinion that Mr Silveira’s symptoms all related to the injury in 2009.
Dr New did not have the benefit of Dr Ketheswaran’s CT scan report dated 5 June 2019 either. However, he did have the investigations contained in the table reproduced at [87] above. Dr New diagnosed cervical spondylosis and acknowledged that Mr Silveira experienced neck and back pain in 2009 prior to the incident on 5 April 2019. He opined that Mr Silveira had suffered a significant exacerbation since 5 April 2019.

In his supplementary report dated 26 March 2022, Dr New opined that, in respect of Mr Silveira’s cervical spine, the main contributing factor to the acceleration and exacerbation of symptoms was related to his work environment with Western Sydney LHD.
I prefer the conclusion reached by Dr New over that of Dr Breit. It is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd[78] (Paric); Makita (Australia) Pty Ltd v Sprowles[79] (Makita); South Western Sydney Area Health Service v Edmonds[80] (Edmonds); and Hancock v East Coast Timbers Products Pty Ltd[81] (Hancock); that there must be a “fair climate” upon which a doctor can base an opinion. Whilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for his conclusion, more than a mere “ipse dixit” (an assertion without proof) is required and the latter seems to be precisely what Dr Breit has done in this matter by simply concluding that there was nothing to suggest an injury to the cervical spine. He failed to engage with the issue at hand, namely, whether Mr Silveira had suffered an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition in his cervical spine and provide a path of reasoning for his conclusion. He did not have the most recent CT scan of the cervical spine available to him.
[78] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
[79] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
[80] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
[81] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
Dr New engaged with the issue at hand on the history taken, albeit very concisely. Often, experts also use their experience and medical intuition, and when they arrive at an opinion, it cannot always be elaborated and explained at length. This common sense approach leads me to the conclusion that Dr New’s opinion is a satisfactory opinion and the one to be preferred. In my view, the opinion was expressed as more than an assertion without proof.
On the background of a significant degenerative condition affecting the cervical spine in a man of tall stature, I am satisfied, on the balance of probabilities, that the factual matrix together with the expert opinion of Dr New support a causal connection between the aggravation, acceleration, exacerbation or deterioration of the pre-existing condition in Mr Silveira’s cervical spine and the ergonomically inadequate workstation provided by Western Sydney LHD.
I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that, within the meaning of section 4(b)(ii) of the 1987 Act, Mr Silveira suffered an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition in his cervical spine in the course of his employment with Western Sydney LHD deemed to have occurred on 24 July 2020. I am also satisfied that Mr Silveira’s employment with Western Sydney LHD was the main contributing factor to such aggravation, acceleration, exacerbation or deterioration of a degenerative condition in his cervical spine.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

DATE	INVESTIGATION	COMMENTS
28/09/2003	MRI lumbar spine	Report only - L5/S1 disc dehydration.
02/04/2007	MRI lumbosacral spine	Report only - disc prolapse L5/S1.
11/01/2010	CT scan cervical and lumbar spine	Report only - small disc prolapse L5/S1.
21/04/2011	Technetium bone scan	No evidence of fracture, cervical spondylosis C5/6 and C6/7.
16/02/2012	MRI lumbar spine	Disc bulge L5/S1.
09/04/2012	CT guided injection	Right L5/S1 transforaminal steroid injection
21/10/2013	MRI lumbar spine	Disc bulge L5/S1.
11/05/2018	CT scan cervical spine	Loss of cervical lordosis, cervical spondylosis C6/7.
17/05/2019	MRI lumbar spine	Loss of lumbar lordosis, dehydration lower lumbar discs, disc bulge L5/S1.

[2022] NSWPIC 187

29 April 2022