Stepanov v Secretary, Department of Education
[2021] NSWPIC 31
•18 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Stepanov v Secretary, Department of Education [2021] NSWPIC 31 |
| APPLICANT: | Sofia Stepanov |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Mr Philip Young |
| DATE OF DECISION: | 18 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Dispute whether surgery reasonably necessary and results from injury; competing medical views; applicant engaged in heavy work as a canteen worker performing most of the heavy lifting because of co-worker’s disabilities; proper test for section 4(b)(ii) not applied by insurer; Held- nature and conditions of applicant’s employment aggravated (etc.) applicant’s cervical disease and medical evidence supports surgery; applicant entitled to declaration sought. |
| DETERMINATIONS MADE: | 1. The applicant in the course of her employment with the respondent between 2009 and 5 June 2017 was exposed to carrying, bending, lifting and repetitive work which was such as to cause an aggravation, acceleration, exacerbation or deterioration of underlying degenerative changes in her cervical spine (aggravation, etc) within the meaning of 2. The applicant’s employment was the main contributing factor to the aggravation (etc) within the meaning of section 4(b)(ii) of the 1987 Act (the injury). 3. The need for the surgery proposed by Dr B Singh in his report dated 14 August 2019, namely C3/4 anterior cervical decompression and fusion surgery (the surgery), results from the injury and is reasonably necessary medical treatment within the meaning of section 60 of the 1987 Act. 4. A declaration is made pursuant to section 60 (5) of the 1987 Act that the respondent is liable to pay the costs of and incidental to the surgery. |
STATEMENT OF REASONS
BACKGROUND
Sofia Stepanov (the applicant) is a 49 year old lady who was employed by Secretary Department of Education (the respondent) as a canteen worker.
The applicant seeks a declaration pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act) that surgery proposed by Dr B Singh in his report of 14 August 2019 is reasonably necessary such that the respondent should be ordered to pay the costs of that surgery. The surgery is C3/4 anterior cervical decompression and fusion surgery.
The applicant frames her case as comprising two alternative types of injury. First, it is alleged that she injured her neck, back and wrist with a deemed dated of injury of 1 November 2016. Alternatively, she alleges the same pathologies result from the nature and conditions of her employment with the respondent between 2009 and April 2019. This “nature and conditions” (for want of a better expression) claim refers to the applicant having engaged in repetitive carrying, bending and lifting in her employment.
ISSUES
The issue is whether the applicant is entitled to a declaration that the respondent is liable to pay the costs of the surgery recommended by Dr B Singh. This has two parts, namely did the applicant suffer work-related injury to her neck and if so, is C3/4 decompression and fusion surgery reasonably necessary?
PROCEDURE BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing on 11 March 2021. Mr C Tanner of counsel instructed by Ms C Dien appeared for and with the applicant. Mr F Doak of counsel instructed by Mr R Galea appeared for the respondent. Initially, time was taken for conciliation and narrowing of the relevant evidence. Regrettably, settlement was not achievable.
Mr Tanner sought amendments to the Application to Resolve a Dispute (Application) which were granted. These amendments included deletion of injury to back and wrists and reliance upon both section 4 (b) (i) and section 4 (b) (ii) of the 1987 Act and additionally the nature and conditions of employment.
I am satisfied that I have used my best endeavours to attempt to effect settlement, to no avail. That being the case, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a)Application
(b)Reply dated 8 December 2020 and attachments (Reply), and
(c)Application to Admit Late Documents filed by the applicant on 5 March 2021 and attachments (AALD).
Mr Doak objected to the admission into evidence of some documents attached to 8(c) above, on the grounds of relevance. The Commission determined that the documents should be admitted on the understanding that the documents were relevant only in terms of the applicant’s ongoing symptoms and incapacity.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Both counsel provided extensive submissions which were sound recorded. In view of the availability of the sound recording to the parties on application, I do not propose to set out the submissions in any detail.
DISCUSSION AND REASONS
The applicant has provided a comprehensive statement dated 24 September 2020. She sets out the fact that she has been involved in three motor vehicle accidents, namely in 1990, on 8 May 2019 and on 13 May 2019. She stopped work on 5 June 2017 and has not returned since that time.
The applicant commenced work for the respondent at a High School in Parramatta in 2009 and worked in the school canteen 38 hours per week for about eight years. She details in her evidence that her co-worker was older and had severe arthritis. Therefore, for much of this time it was the applicant who had to do the heavy lifting including cartons of cordial which needed to be loaded into three separate vending machines. The school did not provide a trolley for her.
It is the applicant’s evidence that although in 1990 she hurt her back in a motor vehicle accident, by 1992 her back had recovered. She says that her 8 May 2019 motor vehicle accident temporarily aggravated her back and neck. The third motor vehicle accident was just five days later when she was struck from behind by another motor vehicle, again aggravating her neck and back pain. However, she says that she now feels “that the neck and back pain is at a similar level to what it was prior to the second motor vehicle accident”.[1]
[1] Applicant’s statement at p 4 [32].
After some time, which the applicant assesses as 2014, her co-worker retired from the canteen. The applicant hired another worker, Vanessa. Unfortunately, Vanessa had personal and family issues which required her to spend large amounts of time away from work.[2] So again, it was necessary for the applicant to do most of the heavy lifting.
[2] Ibid at p 3 [27].
The applicant’s claim in respect of both her back and neck was the subject of a section 78 notice issued by Allianz, the respondent’s agent, dated 24 February 2020. That notice raises section 4, section 9A and section 33 as well as sections 59 and 60 of the 1987 Act. Essentially, the reasons for the insurer’s decision[3] include clinical notes referring to only right carpal tunnel syndrome, rhinoplasty and migraine; a report from Dr Teyshenne of 21 November 2016 recording history of pain in the neck for the last 10 years and a suspicion the applicant’s neck injury results from the motor vehicle accident (presumably 1990). Additionally, a further report from Dr Teyshenne of 22 May 2017 noted a normal neck examination. Further, the insurer noted that on 16 April 2019 an added neck pain diagnosis arrived on the applicant’s Workcover certificate.
[3] Ibid at p 7.
On 21 March 2019 the applicant’s GP, Dr Moe, referred her to Dr Donnellan and the insurer says that the past history was amended to note onset of C6/C7 irritation back on the 26 August 2016.
On 9 October 2019 the applicant attended Dr R Diebold, Independent Medical Examiner, for the insurer. She (Dr Diebold) was of the opinion that the applicant had undergone a full recovery before November 2016 and further that the applicant’s neck symptoms were not related to the 1990 motor vehicle accident nor the workplace injury of 1 November 2016.
Counsels’ submissions raised some conjecture about the strength of Dr Diebold’s opinion. Mr Doak made the point that Dr Diebold assumed a history of heavy work and Dr Diebold agreed with Dr Donnellan that there was “no substantial plausibility” that heavy physical work is a risk factor for injury to the neck.
The insurer conducted a review of its decision and issued a review notice on 31 March 2020. In it the insurer relies upon the opinion of Dr Diebold and Dr Donnellan and says that there is no plausibility to the argument “that the stress on the neck in her canteen work would significantly contribute to a chronic degenerative change to the cervical spine. Therefore, the cervical spine symptoms are not a work-related condition”.
Pausing there, it is clear that the insurer’s conclusion proceeds on an incorrect basis. It concludes that because work did not significantly contribute to the degenerative changes, the symptoms are not work-related. That is not the test. Section 4(b)(ii) (in the case of disease) requires only that the employment be the main contributing factor to the aggravation (etc) of the disease, not to the development of the disease itself. Additionally, section 9A requires (if the injury is personal injury simpliciter) that the employment be a substantial contributing factor to the injury. “Injury” in this latter sense is the event causing the injury. The legislation does not require that the employment be a substantial contributing factor to ongoing incapacity.[4] Put another way, the employment need not be a substantial contributing factor (or main contributing factor) to the progression to the underlying pathology itself.[5]
[4] Rootsey v Tiger Nominees Pty Limited (2002) 23 NSWCCR 725 (per Neilson J).
[5] Murray v Shillingsworth (2006) 68 NSWLR 451.
Additionally, Dr Diebold’s opinion must in my view be discounted somewhat by her incorrect conclusion that because the AMA Guides to the Evaluation of Disease & Injury do not regard heavy physical work as a risk factor, there can be no relationship between that work and injury. The deficiency in this conclusion lies in the fact, in my view, that the Guides have no force in law in NSW and additionally no doubt import scientific standards of proof, rather than the balance of probabilities, as the test supporting the Guide’s conclusions on causation[6].
[6] See, for example, the discussion many years ago by Eggleston J in “Probabilities and Proof” Melbourne University Law Review (1963).
The applicant finally ceased work on 5 June 2017. Much was said by the respondent concerning the addition of neck allegations somewhat belatedly on a certificate dated 16 April 2019 in circumstances where the applicant had not drawn any work connection until then. This is, however, not surprising. The applicant had back pain and carpal tunnel pain which was first treated and it is not unusual for medical practitioners (and applicants) to focus on the complaints of instant moment and/or of more severe intensity. The applicant herself explains the sequence of her emerging medical problems (see below). The sequence includes development of increasing neck symptoms at least from 2016 and possibly after the carpal tunnel problems (2013 or 2014). This history/sequence is consistent with the history referred to by Dr Diebold in her report of 9 October 2019[7].
[7] See Reply p 97.
Dr Teyshenne reported on 21 November 2016, whilst the applicant was still working, in relation to her carpal tunnel syndrome. He noted that the applicant had been seeing a chiropractor regarding her neck. He saw the applicant again on 22 May 2017, about two weeks before she ceased work. Additionally, the clinical notes of Mr Cook in 2016 refer to several periods of treatment for her neck. Dr Moe, who was the treating doctor before Dr Lim, recorded multi-level degenerative changes which she thought were more likely due to repetitive work over time. There are extensive consultation notes throughout 2016 which confirm the applicant’s neck complaints to various general practitioners. If, as I have concluded, the applicant was experiencing increased pain whilst doing the heavier work at work, then in the absence of an alternative cause, common sense suggests that the work was at the least aggravating her symptoms.
Dr Teyshenne, as Mr Doak has observed, recorded in 2016 a 10 year history of pain in the applicant’s neck. No doubt because he was seeing the applicant for the carpal tunnel problems, there is no further detail regarding the regularity, duration, onset, frequency nor intensity of this neck pain. The Commission is left with the applicant’s own account of the onset and intensity of the neck pain she experienced and the almost identical sequence of pain experiences which the applicant described to Dr Diebold.
The respondent points to the absence of specific evidence of weights lifted, frequency of lifting, bending and repetitive work and the posture adopted by the applicant. Dr Diebold, however, took a history of the applicant regularly lifting weights of 15 kilograms and more and the need to pull down heavy shutters. The applicant in her statement expands upon the circumstances of her work and provides to my mind a sensible and credible explanation concerning her need to perform many of the heavier manual tasks because of the disabilities of her co-workers. What the Commission knows is that for about an eight year period the applicant worked the normal 38 hour week, the description of weights include 15 kilograms and more, heavy shutters, heavy boxes, bending, lifting and carrying in circumstances where co-workers were unable to greatly assist the applicant. Her claim that these activities in these circumstances aggravated her neck symptoms is in my view perfectly plausible from a common sense viewpoint.
The applicant’s Drs Donnellan and Singh both recommend the fusion surgery. Initially, Dr Bodel in his report 16 January 2020 was reluctant to consider neck surgery but following a further entreaty by the applicant’s solicitors appears to in March 2020 changed his mind regarding the need for surgery. The reason for this change in my view is explained by Dr Bodel to be the receipt of Dr Singh’s reasoning. That reasoning is that because the cervical injection at C3/4 gave the applicant temporary pain relief, that confirmed that the diagnosis largely concerned C3/4. To my mind that logical explanation reassured Dr Bodel sufficiently to change his opinion.
In terms of the motor vehicle accidents, their significance in any analysis of the applicant’s pathology and symptoms can be briefly dealt with. First, no doctor attributes any ongoing significance to the 1990 accident. Second, CT and MRI scans of the cervical spine occurred before the 2019 motor vehicle accidents and demonstrated left sided foraminal stenosis at C3/4 and possible impingement of the left C4 nerve root. Third, Dr Calvache-Rubio saw the applicant at the request of NRMA Insurance after the second 2019 motor vehicle accident and does not diagnose any neck injury following that accident. The motor vehicle accidents are in my view not relevant to the applicant’s pathology, ongoing symptoms nor need for surgery.
Returning to the issue concerning whether the cervical injury was merely of recent invention, the AALD contains notes of Mr G Cook, chiropractor, recording mild low neck pain from October 2016. This is just before the applicant’s complaint of neck, back and wrist injury on 1 November 2016. DrTeyshenne in his report of 21 November 2016 takes a history of 10 years’ neck pain which would support the applicant having experienced neck pain from 2006, about three years before she commenced work for the respondent. Nonetheless, as far as I can see there are no recorded medical complaints for neck pain prior to the applicant’s employment with the respondent. In any event, the respondent must take the applicant as it finds her and the applicant’s evidence is of generally increasing neck pain from around 2014 to 2016.
I note paragraph 25 of the applicant’s statement:
“25. I began to experience neck pain intermittently following the onset of the pain to my back and the carpal tunnel symptoms. The pain in my neck was intermittent and gradually got worse and more noticeable. However, at this stage the more significant problems for me remained my ongoing carpal tunnel problems… “
This evidence would appear to support the view that the applicant’s neck pain (in sequence as discussed above) first came on in about 2012 or 2013. Her evidence is that she continued to perform heavy work and received chiropractic treatment from chiropractor Mr G Cook in 2016. As earlier stated, Mr Cook’s records confirm this treatment.
It would seem that the applicant has in relation to her neck condition seen a number of practitioners and undergone extensive regimes of treatment including medication, chiropractic treatment, a cortisone injection to her cervical spine, x-rays and MRI scans and a steady deterioration in her neck pain. Her social activities are now restricted.[8] Her incapacity to resume work continues, as evidenced by the Workcover certificates attached to the AALD. Alternative forms of treatment have been explored since 2016, some five years ago.
[8] See Dr J Bodel report at application pp 20-21.
As noted by Dr Singh[9] the injection the applicant underwent at C3/4 provided a temporary relief of symptoms making it reasonable to consider surgery at this level. Although Dr Diebold suggests that the cervical injection was to the foramin rather than the facet joint at C3/4, I am comfortably satisfied that Dr Singh as the applicant’s treating specialist has been much more closely involved in the applicant’s treatment and is best placed among the various doctors to know whether the surgery has prospects of therapeutic benefit for the applicant in this matter.
[9] Application p 38.
In the circumstances, consistent with the factors outlined in Diab[10] it is my view that the medical evidence supports the surgery proceeding and I therefore make an award and declaration pursuant to section 60(5) to that effect.
[10] Diab v NRMA Limited [2014] NSWWCCPD 72.
FINDINGS
The findings of the Commission are as follows:
(a) The applicant in the course of her employment with the respondent between 2009 and 5 June 2017 was exposed to bending, lifting and repetitive work which was such as to cause an aggravation, acceleration, exacerbation or deterioration of underlying degenerative changes in her cervical spine (aggravation, etc) within the meaning of section 4(b)(ii) of the 1987 Act.
(b) The applicant’s employment was the main contributing factor to the aggravation (etc) within the meaning of section 4(b)(ii) of the 1987 Act (the injury).
(c) The need for the surgery proposed by Dr B Singh in his report dated 14 August 2019, namely C3/4 anterior cervical decompression and fusion surgery (the surgery), results from the injury and is reasonably necessary medical treatment within the meaning of section 60 of the 1987 Act.
(d) A declaration is made pursuant to section 60 (5) of the 1987 Act that the respondent is liable to pay the costs of and incidental to the surgery.
Philip Young
MEMBER
18 March 2021
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