Standen v Programmed Integrated Workforce Ltd
[2021] NSWPIC 25
•15 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Standen v Programmed Integrated Workforce Ltd [2021] NSWPIC 25 |
| APPLICANT: | Mark Edward Standen |
| RESPONDENT: | Programmed Integrated Workforce Ltd |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 15 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for cost of future surgery; no issue applicant suffered work-related aggravation of pre-existing lumbar spine condition; question is whether effects of that aggravation have passed and the requirement for the medically necessary surgery has been brought about by the accepted aggravation or by the underlying, non-work related condition; Held- the requirement for surgery was brought about by the work-related aggravation, the effects of which are ongoing; the respondent is ordered to pay the costs of and incidental to the proposed surgery: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 discussed. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury in the course of his employment with the respondent by way of an aggravation of a pre-existing condition in his lumbar spine, to which his employment was the main contributing factor on 28 March 2018. 2. The aggravation referred to (1) above is ongoing. 3. As a result of the injury referred to in (1) above, the applicant requires an L5/S1 lumbar fusion as proposed by Dr Spittaler. 4. The surgery proposed by Dr Spittaler is reasonably necessary as a result of the aggravation injury referred to in (1) above. 5. The respondent is to pay the cost of an incidental to the lumbar fusion surgery proposed by Dr Spittaler. |
STATEMENT OF REASONS
BACKGROUND
Mark Edward Standen (the applicant) suffered an injury by way of aggravation to a pre-existing lumbar spine condition owing to repetitive bending, lifting, twisting and carrying associated with the nature conditions of his employment with Programmed Integrated Workforce Ltd (the respondent) with a deemed date of injury of 28 March 2018.
There is no issue the applicant suffered significant pre-existing degenerative changes in his lumbar spine, and it is these pre-existing changes which the respondent relies on to deny liability for a proposed lumbar spine fusion which has been recommended by the applicant's treating neurosurgeon, Dr Spittaler. There is also no issue that the proposed surgery is a medical necessity.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the agreed need for the proposed lumbar spine fusion has been brought about by the workplace aggravation to the pre-existing spinal condition, or whether the effects of that aggravation have passed and the need for surgery has been brought about by the degenerative condition, which it is agreed is non work-related.
PROCEDURE BEFORE THE COMMISSION
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.
The parties attended a hearing before me on 17 February 2021. On that occasion,
Mr G Levick of counsel instructed by Mr M Evers, solicitor, appeared for the applicant and Ms L Goodman of counsel instructed by Mr D Myles solicitor, appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making the determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 2 February 2021 and attached documents;
(d) respondent’s AALD dated 12 February 2021 and attached documents;
(e) letter dated 11 February 2021 from the applicant’s solicitors to the respondent’s solicitors together with attached documents, admitted without objection and collectively marked exhibit A, and
(f) supplementary report of Dr A Smith, Independent Medical Examiner (IME) for the respondent dated 10 February 2021, admitted without objection and marked exhibit 1.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the need for surgery was brought about by the agreed injury or by the underlying medical condition
As already noted, there is no issue the applicant suffered an injury by way of an aggravation to his pre-existing condition in the lumbar spine, nor is there any issue that his employment with the respondent was the main contributing factor to that aggravation. As such, the applicant has satisfied the definition of injury as set out in section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The question for determination is whether the effects of any aggravation have ceased and the requirement for the proposed lumbar fusion has been brought about by the underlying condition as opposed to the workplace aggravation of it.
The applicant submitted the aggravation never ceased, and the clear evidence was that before 2017 he was coping well with his heavy duties at work. He says, and I accept given the nature of his duties are not an issue, that he was working on machines which required him to stand in one spot for long periods of time in a hunched pose. That included the applicant working on machines which required him to roll big bolts with one hand and paint them with grease with the other, before putting the washer and nut on the bolt as fast as was possible. The applicant was expected to perform this task up to 2,300 times per shift.
The applicant states he first reported the injury to his back in or about July 2017. He said matters came to a head on 27 March 2018 when he spoke with the safety officer and complained about his back (and an elbow injury) and the next day was called into the office. At this meeting, the applicant was apparently asked whether he had been undertaking tiling work in his own business and replied that he had not done so for the last two years.
Mr Levick noted the applicant underwent scans in 2018 and was referred to neurosurgeon, Dr Spittaler, who ultimately concluded he requires surgery. Mr Levick submitted the applicant’s back had remained symptomatic ever since the aggravation, which is consistent with that aggravation being the cause of the requirement for surgery given he had endured the degenerative problems without reaching the constant pain which he suffered after the workplace aggravation.
Mr Levick submitted the Commission would reject the opinion of Dr Smith, IME for the respondent in his most recent report at page 3 of exhibit 1. In that report, Dr Smith indicated:
“An aggravation to the lumbar degenerative disease can last minutes, hours, days or weeks, but no more than three months. The problem is that the patient keeps on having episodes and tends to regard them as a continuum.”
Mr Levick submitted that Dr Smith’s opinion was not consistent with the unfettered evidence of the applicant concerning consistent and ongoing problems with his lumbar spine since the workplace aggravation. Moreover, Dr Smith provides no explanation or basis as to why it is he reached the conclusion that aggravations to lumbar degenerative disease will always resolve within three months. Absent an explanation as to why this would be the case, I accept Mr Levick’s submission and find Dr Smith’s opinion is a bare ipse dixit statement which does not have a sufficient factual basis behind it to warrant acceptance.
I prefer the views of Doctors Kleinman, Spittaler and Ferch who all accept the effects of applicant’s aggravation are ongoing. Those doctors have the benefit of an accurate history from the applicant, which includes, in fairness to him an admission of pre-existing lumbar symptoms from his work as a tiler. For example, treating neurosurgeon Dr Ferch said in his report dated 28 June 2018:
“As you know Mark has a long history of symptoms related to his back. He initially developed lower back pain associated with his work as a tiler and saw Professor Ghabriel. Professor Ghabriel advised that he shift industries. Mark has become increasingly limited by pain radiating across his lower back and he attributes this to a sustained flexed posture whilst working on bolts…
I had the opportunity to review Mark's lumbar MRI scan performed in 2017. The study confirms degenerative change which particularly affects the L4-5 level. There is high signal within the facet joints and a degree of lateral recess stenosis consistent with some wobble through this level. There is some degenerative change at the L3-4 level but no neural compromise…
Mark will be vulnerable to the L4-5 level progressively deteriorating and this may result in increasing neural compromise. Fusion over the L4-5 level may ultimately be what Mark requires in order to obtain relief but, at this stage, I have reassured him that his nerves are working normally and it is safe for him to continue with stretching exercises and conservative treatment.”
In a later report dated 30 August 2018 to the respondent's insurer in reply to the report of Dr Shepherd, Dr Ferch was specifically requested to confirm whether he was aware the applicant was working as a tiler as at the date of injury. After setting out the history provided to him by the applicant, Dr Ferch said:
“Mr Standen has evidence of degenerative change at the L4-5 level. Repetitive lifting and working in a fixed posture either as a tiler or on greasing bolts could potentially aggravate low back pain.”
In that report, Dr Ferch indicated repetitive lifting might have caused the aggravation to the applicant’s back, whether that lifting was in tiling or in work with the respondent. It is noted, however, that for the purpose of those proceedings the workplace aggravation is admitted. Moreover, Dr Ferch accepted the applicant’s explanation that the more recent aggravation caused to his back was caused by his work with the respondent.
Likewise, the report from the applicant's treating physiotherapist, Ms Fitzgerald dated 17 September 2018 to the respondent's insurer notes the applicant was not working as a tiler at the date of injury, and indicated tiling was not the main contributing factor to the applicant's current diagnosis and symptoms for his lumbar spine. Ms Fitzgerald explained her opinion as to causation as follows:
“Mr Standen had not tiled for approximately a year in the lead up to his current symptoms. Previously, he had been working in the mines as a multiskilled worker and had no problems with his back. It was not until his job at DSI that low back pains began...
Greasing bolts is the main contributing factor to the current diagnosis of his lower back pain. Greasing bolts involves standing in a flexed position for sustained episodes which will bring on back pain.”
Dr Kleinman, IME for the applicant provided a report dated 1 October 2020, in which he concluded the surgery proposed by Dr Spittaler is reasonably necessary and the applicant’s work with the respondent aggravated the underlying degenerative change in his back, and following this incident his back condition rapidly worsened.
Whilst Ms Goodman properly noted the underlying condition was not work-related, the question for the determination for the Commission is whether the need for surgery was brought about by the aggravation of that underlying condition or the condition itself. As noted, there is no secret the applicant suffered from pre-existing lumbar spine issues, however, it is symptomology which brings on the requirement for surgery, rather than any underlying condition per se. That is, it is quite possible for someone to have significant degenerative changes which are asymptomatic, however, an event – whether work-related or not - may precipitate those changes becoming symptomatic and requiring a different treatment modality to that which the patient had previously undergone.
As Dr Kleinman noted in his report dated 18 December 2020 in exhibit A:
“Mr Standen has a long history of pain in his lower back which does not appear to have been severe enough to prevent him working. It is worth noting that he was able to serve as an artillery man in the armed forces despite his back problems.
After he commenced working for DSI he appears to have a significant aggravation of the pain in his back which was severe enough to prevent him working. Therefore his employment with DSI must be considered to be the main contributing factor to the aggravation of his back condition.”
For the respondent, Ms Goodman noted that although Dr Spittaler accepts the operation itself is reasonably necessary, he did not set out why that is so. With respect, Dr Spittaler is a treating surgeon, and the fact he has requested the respondent’s insurer pay for the cost of the surgery is, in my view strongly indicative of him being of the opinion the need for the operation is work-related.
Ms Goodman noted it was apparent from the applicant's work history that from time to time he carried out tiling work, and it was unclear as to how often and how recently he had done so. She indicated the Commission would not prefer the view of Dr Ferch given he did not initially have the history of having undertaken tiling work, and this was particularly important in considering his first opinion set out at page 23 of the Application.
Ms Goodman took the Commission to a CT scan of the applicant's lumbar spine which was taken by Dr Thong on 3 June 2010. Ms Goodman pointed out that report referred to a history of chronic lower back pain and suggested that this is indicative of degenerative process
in play which has ultimately led to the requirement for the surgery recommended by Dr Spittaler.The difficulty with that submission is that the applicant has been able to consistently carry out a variety of work with his lumbar symptoms, until such time as he went about his duties with the respondent.
Ms Goodman next took to the Commission to the clinical records of Swansea Channel Doctors and the entry from 16 January 2018. That entry provides the following commentary:
“Lower back pain:
*Long standing history of lumbar spine discopathy related to occupational stress as a tiler.
*Saw Dr Gabriel many years ago – advised to change professions rather than operative management.
*Change to the mines with good symptom resolution.
*Has had increasing financial strains has returned to tiling part-time on top of his regular full-time job in the mines.
*Has had progressively worsening left leg neuropathic pain and localised pain in the lumbar spine since.
*On examination, he has limited range of motion in forward flexion.
*No weakness or red flags”.
Ms Goodman submitted that entry was suggestive of the applicant's work as a tiler having been the triggering factor for the aggravation.
That entry by the general practitioner was the only occasion which refers to the applicant having undertaken recent tiling work. In his statement, the applicant refers to the symptomology in his lower back coming upon him and worsening in the course of his employment with the respondent, and continuing to worsen up to approximately 27 March 2018 when he spoke with the safety officer at work. Moreover, the applicant’s treating physiotherapist also asked him about working as a tiler, to which he reported that he would occasionally work in that capacity when it was quiet during the course of his employment with the respondent and he would take some tiling jobs, however, he neither rejected any shifts with the respondent in order to do tiling nor had he carried out any work since 2017 as a tiler and that was when he carried out some work on his own premises.
On balance, I am of the view that the medical evidence in this matter supports a finding that the requirement for surgery has arisen because of the accepted aggravation which took place in the course of the applicant's employment with the respondent. Each of Dr Ferch, Ms Fitzgerald, Dr Kleinman and Dr Spittaler are aware of the applicant having worked as a tiler in the past and are comfortable in attributing his worsening symptoms to the workplace aggravation. The sole entry by the applicant’s GP is not, in my view, sufficient to satisfy me the otherwise consistent histories provided by the applicant should not be preferred. It is well known that caution must be exercised in taking at face value the histories recorded by treating practitioners in their clinical notes.
In accepting these opinions, I reject the view of Dr Smith. Dr Smith notes in his report at page 44 of the Reply that:
“The changes present in the lower back are not post-traumatic. They are part of the ageing process as it is affecting him. His employment as a plant operator is not the main contributing factor to his lumbar degenerative disease, lumbar spondylosis, or lumbar osteoarthritis, whichever term one cares to use.”
With respect, in providing this diagnosis Dr Smith is addressing the incorrect question. There is no issue the underlying pathology in the applicant's lumbar spine was not caused by his employment with the respondent. The issue for determination relates to the aggravation. There is a long line of authority beginning with cases such as Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 which make it clear the exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. That decision has been followed many times in the worker’s compensation context in cases such as Cant v Catholic Schools [2000] WCC 37 and AV v AW [2020] NSWWCCPD 9 (at [66] and following).
In my view, the balance of the lay and medical evidence in this matter supports a finding on a common-sense basis that the requirement for surgery, which even the respondent’s IME Dr Smith admits is a medical necessity, has been brought about by the aggravation suffered by the applicant in the course of his employment with the respondent.
In so finding, I accept the applicant's submission that there has been a continuity of treatment since the accepted aggravation and also a continuity of symptoms. In my view, that is strongly suggestive the effects of the aggravation have not ceased.
Ms Goodman sought to attack the applicant’s credit on a broad basis, however, I do not accept that attack is available to the respondent absent any contradictory evidence regarding the history concerning his tiling work or any request to cross examine him. The fact the applicant’s aggravation in the course of his employment with the respondent was serious and ongoing is also supported by the fact there are no complaints in his general practitioner notes from approximately 2011 onwards until he commenced his work with the respondent. Indeed, by the time the applicant left the respondent’s employ, he was almost constantly complaining of lumbar spine issues at every visit to his doctor.
For these reasons, I am of the view the applicant has satisfied the onus of proof in demonstrating that the requirement for the medically accepted surgery at the hands of Dr Spittaler has been brought about by his workplace injury, which I find the effects of which to be ongoing.
Summary
For the above reasons, the Commission will make the orders set forth on page 1 of the Certificate of Determination.
Cameron Burge
MEMBER
15 March 2021
0
2
0