Strong v Woolworths Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Strong v Woolworths Limited [2022] NSWPIC 358
APPLICANT:	Cindy Dawn Strong
RESPONDENT:	Woolworths Limited
MEMBER:	John Wynyard
DATE OF DECISION:	6 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for section 60(5) of the Workers Compensation Act 1987 declaration that surgery had been reasonably necessary; worker suffered admitted back injury in 2010 but experience with insurer rehabilitation made her reluctant to claim for further back issues; 2017 flareup caused referral to specialist; significant pathology found on investigations but flare up had settled; further aggravation caused by checkout duties during panic buying when COVID-19 pandemic struck in 2020; same significant lumbar spinal pathology present on further investigation; worker suffered from communicating hydrocephalus since teenage years when brain shunt inserted; suffered symptoms from time to time as a result; investigated at John Hunter Neurology as to implication on proposed surgery which followed a week or so later; whether lumbar spine condition main contributing factor to need for surgery; Held – Dr Miniter for respondent expressly discounted relationship between ventricular shunt and lumbar spine condition and nature and conditions of employment found to be main contributing factor; respondent liable for costs of surgery.
DETERMINATIONS MADE:	1. The applicant aggravated her pre-existing degenerative changes whilst performing her duties for the respondent. 2. The surgery of 26 August 2020 and related costs were reasonably necessary.
ORDERS MADE	1. By consent the claim for weekly payments is discontinued and I dispense with the necessity for the applicant to lodge a Notice of Discontinuance. 2. By consent the claim for s 60 expenses is amended to add a claim for a general order. 3. The respondent will pay the sum of $15,453.48 for the costs and related expenses of the surgery. 4. The respondent will pay the applicant’s other s 60 expenses on production of accounts, receipts and/or HIC Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Cindy Dawn Strong, the applicant, brings an action against Woolworths Limited, the respondent, for weekly compensation and s 60 medical expenses with regard to both physical and psychological injuries.
Dispute notices were duly lodged.
The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The following issue is in dispute:
(a) has the applicant aggravated the pre-existing degenerative disease in her lower back.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

This matter was heard on 28 February 2022. The applicant was represented by
Mr Christian Hart of counsel instructed by Mr Robert McKessar from Messrs Braye Cragg, solicitors. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Messrs BBW, lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

Preliminary

Mrs Strong discontinued her claim for weekly compensation at the hearing. The claim is accordingly for medical expenses only, which include the cost of back surgery on 27 August 2020.
The applicant amended without objection the pleadings in the “Injury Details” at p 6 of the ARD form to add after the words “the applicant’s” the words “previously accepted”.
Mr Hart also sought a general order for s 60 expenses in addition to the expenses sought. There was no objection to that application.

The evidence

Mrs Strong was first employed by the respondent in 2008 at its Warabrook store.
[1] ARD p 1.
[2] ARD pp 121-122.
Mrs Strong made a statement dated 10 September 2020,[1] but it was vague on detail. Associate Professor Leon Kleinman established that her duties were of a checkout operator, and he took a history that repetitive work in 2010 had caused her to develop severe pain in her lower back.[2]
She consulted her general practitioner (GP), Dr Marie-Anne Hockings on 26 November 2010[3], complaining of:
“Bilateral lumbosacral backaches in the last month, ppt by heavy lifting (eg 10kg bags of potatoes). Shooting electrical pains and ‘numbness’ (pins & needles down into left buttock (to crease of thigh) for about three weeks.”
[3] Reply p 14.
Dr Hockings noted:
“In distress (pale and shaking) due to pain. Walked stiffly and gingerly.”
Liability was accepted for this injury but in her statement, Mrs Strong said:[4]
“16. However, I was treated badly by the Insurer and the Work place and felt that I did not want to make another claim for that reason.”
[4] ARD p 2.
Dr Kleinman recorded that she was off work for about a month and went back to work as her back had recovered.[5]
[5] ARD p 122.
Mrs Strong said that she “self managed” when she experienced issues with her back from time to time because she had been treated so badly.[6] She then addressed her experiences with the respondent in March/April 2020, but Dr Kleinman took a more detailed history.
[6] ARD p 122.
It was “a few years later” that her back pain recurred, he said, but she self-medicated using Brufen and Voltaren whilst working, and her pain settled down. He recorded two specific instances:[7]
“In about 2014 she had another recurrence of the pain in her low back but again she did not report the recurrence of the pain in her back. She self-medicated and remained off work for six weeks. Her back did settle down spontaneously.
In 2017 she had a further recurrence of the pain in her low back and at this stage she developed radiation of pain down her right leg while working on the checkouts. She did not report the recurrence of the pain in her back and the pain in her right leg.”
[7] ARD p 122.
The clinical notes from the Mayfield Medical Centre contained a referral on 19 June 2017 to Dr John Christie, neurosurgeon, from Mrs Strong’s then GP, Dr Rajan Sarin. The referral noted that a CT scan had been carried out on 13 June 2017, and the radiological findings were included.[8]
[8] Reply p 254.
Dr Kleinman reproduced those findings in recounting the history of Mrs Strong’s treatment. He noted that she was referred to John Hunter Hospital ED, and discharged. She had about six weeks off work. By the time she saw Dr Christie on 28 August 2017 her symptoms had again settled down.
Dr Christie said:[9]
“Her CT scan that was done in June shows degenerative change involving the lower two discs and there is some right sided disc protrusion at the L5/S1 level displacing the S1 nerve root. That would fit the clinical picture very well.
Fortunately she has settled down now and I don’t think any further intervention is needed. She is aware of the need to take care of her back and I think she probably looks after it pretty sensibly. I am not sure what has caused the incontinence problems but if they persist then it may be worth getting urological opinion…”
[9] Reply p 42.
Mrs Strong in her statement said that in March and April of 2020 the effect of the Covid pandemic caused people to “panic buy” and the store became exceptionally busy. She was rostered on a standard 30 hour week, but was often doing 32 or 34 hours. She said there was a change of process, as staff was advised not to touch customers’ bags, which the customers were to pack themselves. She said at [20]:
“…This meant a change from the ordinary process of packing the bags off the conveyor belt and into bags at waist level, to leaning over and placing those items on a much lower level in front of the shopper. This was obviously more difficult and a strain on my back, particularly with heavy items.”
Mrs Strong said this system continued on for more than a month, and she discussed her situation with her supervisor Ms Jenny Hitchcock, who agreed, when Mrs Strong said that it was “killing my back”, that the system was “killing” her back also.
Again, Mrs Strong self-medicated and did not seek treatment. She sought some time off but there was nobody to replace her, she was told, and she either did not ask, or her request was denied (her statement is unclear at this point). She said at [27]:
“27. On 29 May 2020 I was in my kitchen not doing anything in particular and getting ready for bed when I noticed an excruciating pain in my low back area.”
She thought it might be related to a pathology she had suffered some 30 years earlier, and went to work the following day “in excruciating pain”. She went off work on 31 May 2020 and consulted her GP, Dr Younis on 1 June 2020. She has not worked since.
Ms Hitchcock said:[10]
“I was aware after discussions with her after 31/5/20 that she was not well, had a seizure on the Sunday night and had health problems since, stopping her from coming to work she thought it was due to the shunt in her head and I did not know anything different until she lodged a claim…”
[10] ARD p 20.
The clinical notes from Mayfield Medical Centre show that on 1 June 2020 Dr Afifa Younis referred Mrs Strong to Dr Jeanette Lechner-Scott at JHH Neurology Outpatients. Dr Younis wrote:[11]
“Thank you for seeing Cindy Strong for an urgent opinion/ assessment and management. She has had ?seizure shakiness of generalised body on last Friday lasting for 4-5 minutes followed by feeling of leg paralysis for couple of minutes; There was no LOC and was triggered by low back/ tailbone pain, witnessed by her son.
She gives four such episodes in past post pain in tailbone associated with LOC and requiring hospitalisation.
There is past h/o VP shunt, at age of 17 years for communicating hydrocepahalus,
She has had fainting episodes at work 3 months back as well.
She needs shunt review as well and is advised not to drive until [specialist] review.”
[11] Reply p 256.
The clinical notes also contained a referral to Dr Lechner-Scott earlier in the year, on 28 February 2020, not referred to by Dr Kleinman. This stated:[12]
“Thank [you] for seeing Cindy Strong for an early opinion and management,
Pt with fainting episodes at work (twice in last fortnight); LOC, remained fainted for few minutes; witnessed by colleagues, Nil seizure/ fit/ frothing/ incontinences,
She gives h/o tiredness and pins/ needles with numb feeling on both hands (whole hand) for last 3 months, worse at night with weak grip sometimes.
There is past h/o VP shunt at age of 17 years for communicating hydrocephalus..”
[12] Reply p 257.
The clinical notes reproduced a report of a CT scan of the brain which had been performed on 19 February 2020, also not referred to by Dr Kleinman. The radiologist reported:[13]
“There is a VP shunt as per the description above.
The pituitary gland is increased in height, measuring 1.2cm. Further investigation with MRI can be performed if clinically indicated.”
[13] Reply p 258.
Mrs Strong said in her statement at [34] that she was advised by Dr Pavey after “some scans” were carried out that she had two herniated discs at L4/5 and L5/S1, and that:
“It is not your cerebral issue, it is your back.”
Dr Kleinman took a consistent history of the alteration in work duties caused by the Covid 19 pandemic. He noted that Mrs Strong was referred to Dr Nathan Pavey, neurologist, but had to wait six weeks, during which time her left leg became numb. Dr Kleinman reproduced the radiologist’s report of a CT scan taken on 9 July 2020, noting the conclusion:[14]
“Significant L4/L5 and L5/S1 disc extrusions.”
[14] ARD p 123 and Reply p 272.
Mrs Strong said at [35] that by the time Dr Pavey advised her that she had two herniated discs, she had a “dead leg” on her left side, and she came to surgery with Dr Richard Ferch at John Hunter Hospital on 26 August 2020.
Dr Kleinman noted the surgery, but did not see the operative report. This was lodged by the respondent and was dated 27 August 2020.[15] The procedure was a microdiscectomy at L5/S1 and L4/L5, and Dr Kleinman said:[16]
“She has found that the surgery to her back has been very helpful. The surgery has relieved the pain and numbness in her left leg and she now only gets pain in her back if she has been very active.”
[15] Reply p 199.
[16] ARD p 124.
In a supplementary statement dated 28 August 2021,[17] Mrs Strong said that Dr Ferch had been seen post-surgery and seemed happy with the result. She said that about six weeks following the operation, in about October 2020:
“…doctors tied off the shunt in my brain on the basis that they felt it was no longer needed.”
[17] ARD p 7.
Mrs Strong thought that the tie-off had been successful, although she added at [13]:
“…I do feel that I suffer from confusion and memory issues and I wonder whether this is related to the tying off of the shunt.”
Dr Kleinman noted that “since her brain surgery” Mrs Strong had been taking one tablet of Endep at night for pain relief. Dr Kleinman did not record the date of the brain surgery, but other evidence showed it to be in October 2020.
Dr Kleinman’s opinion was:[18]
“Ms Strong had pre-existing disc, prolapses in her lumbar spine at L4/5 and L5/S 1 which were aggravated by the change in her working conditions as the result of the COVID [19] precautions introduced by Woolworths and as result she came to surgery to her back in the form of discectomies at L4 and L5.
She has had a good result from the surgery to her back but she will always need to maintain her level of fitness and core muscle strength to prevent a recurrence of her back problems.”
[18] ARD p 125.
He noted that on examination there were residual signs of a left L5 radiculopathy.
In answer to a somewhat convoluted question from his retaining solicitors Dr Kleinman advised:
“In my opinion her injury with a notional day of 30 May 2020 was caused by her scanning and leaning at the checkout, particularly as a result of the change in her working posture due to the COVIDI 9 precautions introduced by Woolworths.”
Dr Kleinman considered that her back injury was the aggravation of a disease process caused by the nature of her employment duties as a checkout operator over a period of time, and that her work with the respondent exacerbated and aggravated her underlying disc disease.[19]
[19] ARD p 127.
In a supplementary report dated 24 January 2021, Dr Kleinman reviewed the notes from the John Hunter Hospital, the operation report from Dr Ferch of 27 August 2020, and the report of Dr Christie dated 28 August 2017. Dr Kleinman confirmed his opinion.

Communicating hydrocephalus

As has been seen, Mrs Strong suffered a significant injury when she was 17 years old. She described it at [5] of her statement, saying that she had an issue with back pain (“extreme tail bone pressure”) and other problems that turned out to be caused by fluid on the brain. She said at [6] that it was initially drained and later a ventricular shunt was “put into my brain” on 13 August 1991. She said:
“7. With my cerebral fluid problem many years ago one of the major symptoms was tailbone pain.
8. This brain problem put me off work for a while as I was having problems and they even suggested that I had some frontal lobe damage as a result of the fluid. I was put on the disability support pension for a couple of years.”
Mrs Strong continued that she obtained work in Tamworth in a bar, and was able to get off the DSP. She married, and had two sons born respectively in 1999 and 2002.
Dr Kleinman took a fuller history:[20]
“Thirty years ago, while living in Tamworth, she developed pain in her coccyx which was being caused as a result of increased cerebra spinal fluid pressure in the spinal canal as a result of an acute episode of hydrocephalus. She was treated at St Henry's Hospital with the insertion of a shunt for her hydrocephalus and as soon as the pressure was reduced the pain in her coccyx was relieved. She has not had any ongoing problems with her hydrocephalus and eight weeks ago she had the shunt tied off and she has been told that she no longer needs the shunt.”
[20] ARD p 120.
I have already referred to the report of Dr John Christie dated 28 August 2017, but amongst the subpoenaed material was a further report dated 21 March 2011. It was relied on by the respondent and gave a similar history of the communicating hydrocephalus. Dr Christie said, writing to Dr Younis:[21]
“Thank you for asking me to see Cindy. She ls 36-years-old now. At the age of 17 she had an episode which she said started with severe lumbosacral pain, but was then followed by some type of collapse, As part of the investigations, she had a CT scan of the brain which showed quite significant hydrocephalus. I think this, was monitored for some time, but she continued to have headaches and a VP shunt was then inserted by Peter Blum in Sydney. …
She has remained well, but recently again had another episode of quite severe low back pain and I see from your letter that she 'has had headaches as weft. Currently she is well and her symptoms have settled.
On examination, she looked very well and there was no neurological deficit. Her optic discs looked clear.
She had her CT scan with her from 1991 prior to any treatment and: she certainly had quite significant ventricular enlargement then including the 4th ventricle, and the appearances were consistent with a communicating hydrocephalus. Her most recent CT scan in fact looks somewhat better and the ventricles are certainty smaller than they were: prior to treatment The shunt valve feels normal, l am not sure what the recent episode was, she does have some degenerative change in her lumbar spine and it may be that that was the source of her trouble.
I do not think that anything needs to be done to the shunt at this stage, and I am happy for you to keep an eye on her. If there are any concerns, then I would only be too happy to see her again.”
[21] Reply p 33.
The respondent lodged the Mayfield Medical centre clinical notes in which neither the doctor nor the presenting dates were not identified. The applicant’s counsel, Mr Hart kindly reduced these to an aide memoire of 25 pages, relating the entries to dates. It was suggested that the GP was Dr Min Sein, which is probable in view of the fact that he identified himself in a referral of 25 July 2020 to a physiotherapist, and he issued a certificate from 13 July 2020. The clinical note of 1 June 2020 read:[22]
[22] ARD p 39.
“Sciatica
Cauda equina compression?
Actions:
Imaging request printed to Alto Imaging: CT Scan - Lumbar spine. (left sciatica and ?cauda equina syndrome)
Medical Certificate given from 13/07/2020 until 17/07/2020.
New patient to me
left sciatica x 1 O yrs, doing physio and lifestyle
?urine and feacal Incontinence x 3 yrs
seen by Dr Christle, neurosurgeon 3 yrs ago, advised non-surgical management
past hydrocephalus, having VPS x 30 yrs
recent neuro referral for "shakes" and "tremors", concluded irt as related to the pain clinically: antalgic pain along left sciatic nerve distribution
no muscular wasting or weakness
patient denied saddle numbness
did not do anal tone assessment
suggested CT (MRI contraindicated due to shunt}, before neuro referral.”

Neurology Discharge Referral John Hunter Hospital

The respondent lodged the notes of a review of an MRI scans of Mrs Strong’s lower spine and head that were carried out at John Hunter Hospital on 14 August 2020. They included an angiography testing for possible underlying spinal dural AV fistula, and for DSA, MRI scanning of the brain for Myelopathy, and of the whole spine for spinal canal stenosis.[23] The triage nurse notes stated:[24]
“Triage nurse notes: Self presents, told to present by neurosurgeon for review of MRI of lower spine and head attended today. Has been having lower back pain, numbness down legs over the past 2/12.”
[23] From Reply p 147.
[24] Reply p 201.

The presenting problem was described as:
“-      Longstanding weakness and numbness in left lower leg for months, felt worsening
-       Describes incontinence of urine on movement for several weeks, and some of faecal matter more recently
-       No recent infective symptoms
-       Back pain has been persistent for months - years affecting lower back
-       No recent history of trauma
-       Seen by Neurologist Dr Pavey who arranged MRI and patient presented to hospital thereafter”
Neurological symptoms were noted in the issues and progress notes, the entry stated:
“1. Neurological symptoms
-       Power grossly normal in lower limbs with some mild deficit in hip flexion on the left side (4+)
-       Reports some loss of sensation from T 4-T12
-       MRI showed features of intracranial hypotension, with pachy meningeal thickening and enhancement, sagging midbrain, convex pituitary and dural low signal within the spine. Potential Dural AV fistula.
-       Underwent DSA on 18.8.20 which showed no AV fistula
-       Symptoms potentially due to CSF overshunting
-       Reviewed by neurosurgery: planned for LS discectomy next week. Unable to tie this to patient's symptoms however.
-       It is likely that the sensory loss and incontinence is multifactorial in nature…”

Post surgery

Mrs Strong presented at Dr Ferch’s rooms on 8 October 2020 and was seen by
Dr Amanda Paterson on Dr Ferch’s behalf. The decision was taken to tie off the ventriculoperitoneal shunt at that time, and Dr Paterson said of the discectomy:[25]
“The first issue is that she is now six weeks post left L4/5 and L5/S1 microdiscectomies. She was admitted under Neurology on 14 August 2020, with worsening of a longstanding weakness and numbness in her left lower limb and she had also been complaining of several weeks of urinary and faecal incontinence. One of the Neurologists had arranged for her to have an MRI and then present to the John Hunter Hospital. She was reviewed by Neurosurgery at that time and there was a concern that there may have been an underlying dural AV fistula. As such, she attended a spinal DSA which did not demonstrate any AV fistula. She was requested for admission for an elective microdiscectomy the following week but at that time it was felt that her multifactorial symptomatology were not entirely consistent with a lumbar spine pathology.
Cindy tells me that since her operation she now has absolutely no left leg pain and her back pain is also much improved. Her left leg numbness has also improved substantially and she only complains of some residual numbness in her posterior left thigh only. She also tells me that she had had some weakness in her left ankle preoperatively which is now resolved and certainly she does not have a foot drop when she mobilises. She also says that her bowel and bladder dysfunction has completely resolved as well postoperatively. I am very happy to hear all of this.
[25] Reply p 160.
Following the surgery, Dr Pavey reported to Dr Younis on 15 October 2020 that Mrs Strong was recovering from her discectomy, which had dramatically improved her lower limb discomfort and her walking had greatly improved.[26]
[26] Reply p 159.

2004

Amongst the documentation obtained by the respondent was evidence of an event in 2004.
In the records of the Emergency Department of the Newcastle Mater Misericordiae Hospital, which recorded an admission of Mrs Strong dated 22 April 2004.[27]
[27] Reply p 128.
The presenting problem was described as:
“Presents with painful lower and mid back after putting 4 ys old son into bed….felt knotting sensation and severe pain in back. …hx of back injury”
The applicant’s past history of the shunt was noted, and Mrs Strong presented with “back pain, seizures” and “loss of consciousness”.
A neurological examination found there were “no headaches, blurred vision, loss of consciousness dizziness, numbness, or weakness, nausea or vomiting”. The impression was of “lumbosacral strain”, with a query about disc prolapse.
A spinal assessment dated 22 September 2004 noted that Mrs Strong had experienced three episodes that year. A diagram showed the area of the back affected was the lumbar area, and a handwritten note said:[28]
“Impression lumbosacral strain
(indecipherable) prolapse?”
[28] Reply p 129.
A handwritten statement was lodged from Jenny Hitchcock dated 30 July 2020.
Ms Hitchcock said that she had no recollection of Mrs Strong reporting an injury in the workplace during April 2020, and that Mrs Strong complained to her of a seizure caused by the shunt.

Associate Professor Miniter

The respondent relied on the opinion of Associate Professor Paul Miniter of 15 November 2021. He acknowledged receipt of 15 documents which included the report of Dr Christie of 26 August 2017 and that of Dr Kleinman of 26 November 2020. Mrs Strong’s statement was also included.
Dr Miniter took the history of the onset of back pain in 2010. He noted that “at no stage” was there an injury, but that Mrs Strong “simply” told him that she had significant pain. He reported that “there was no further issue” until 2014 when the lower back pain deteriorated and involved Mrs Strong’s right buttock. Dr Miniter noted the referral to Dr Christie in 2017, and that the pain resolved.
Dr Miniter then described the surgery of August 2020, and noted the pre-surgery investigations. He said that Mrs Strong was admitted in a “semi-urgent fashion” for the surgery, and that the pre-surgery investigation had demonstrated an apparent osteophyte complex associated with the L5/S1 compressing the S1 nerve root on the left.
Dr Miniter noted that the surgery had relieved Mrs Strong’s leg pain, but not her back pain. He noted that in October the VP shunt was tied off. He referred to Dr Ferch’s operation report of 27 August that extruded disc fragments had been removed and the S1 nerve freed.
Dr Miniter stated:[29]
“The available evidence suggests the development of degenerative lumbar spinal disease. This has involved primarily the L5/S1 level and is seen in the initial investigations progressing through to 2017 and then to 2020. She possibly had a degree of cauda equina compression at one stage and this was resolved effectively by the surgery in question.
In my opinion, there are no features to suggest that she has other than degenerative disc disease. There are no workplace injuries and as far as I could determine she now has mechanical back pain. This can be very difficult to determine but she has not had any investigations since the surgery and has also not seen Dr Ferch.”
[29] ARD p 150.
Dr Miniter disagreed with Dr Kleinman’s finding that the change in Mrs Strong’s work conditions were “somehow involved with her presentation”. This was, Dr Miniter explained, because she had longstanding issues, and at the time Dr Kleinman saw her there was an involvement with L5 radiculopathy, but so such feature was present when Dr Miniter examined her to suggest that this was ongoing. He said that Mrs Strong had not been seen by Dr Ferch since the surgery.
The following questions and answers were recorded by Dr Miniter:[30]
“(e) If you believe the worker has suffered from an aggravation injury of a disease condition, do you believe employment was the main contributing factor to the aggravation?
I could see no evidence of substantial aggravation.
(f) Do you believe the worker's pre-existing abnormalities, namely her ventricular shunt and/or her degenerative spine, were a substantial or the main contributing factor towards her injuries?
The pre-existing abnormalities are consistent but the ventricular peritoneal shunt, in my opinion, is of no concern. The degenerative spinal lesion which is identified over a period of years, and which has progressed inexorably is the cause of her problem.”
[30] ARD p 151.
Dr Miniter acknowledged that Mrs Strong’s ongoing back pain did not result from any “specific” injury. In discussing the report of Dr Kleinman, he said that he could see no evidence of “significant” injury. Dr Miniter said that Mrs Strong was a “straight forward individual” who did not demonstrate abnormal illness behaviour.

Dispute notices

A s 78 Notice was issued on 17 August 2020, and a s 287A Notice on 16 November 2021.
The s 78 Notice was issued prior to the receipt by the insurer of Dr Miniter’s report of 15 November 2021. It denied liability on the basis that neither a personal nor disease injury had been suffered on the date of injury, 30 May 2020.[31]
[31] Reply p 1.
The reasons relevant to the decision noted that:
“•      the applicant had been employed since 2008,
(a)    she injured her lumbar spine (with sciatica) on 12 November 2010 in the course of her employment for which liability was accepted,
(b)    she was certified fit for preinjury duties from 4 January 2011,
(c)    a further claim was submitted on 28 July 2020 alleging sciatica and “bulging discs” with symptoms dating back to 2 April 2020,
(d)    the cause was alleged to have been scanning and leaning at checkouts after being directed not to pack customers bags as a result of the Covid 19 pandemic,
(e)    the diagnosis of left sciatica by Dr Sein had been caused by an escalation of the earlier left sciatica of 2010,
(f)    Reference was made to the statement by Ms Hitchcock that she had no recollection of any report of injury in April 2020, and
(g)    the applicant had suggested to her doctor that her symptoms might be work related.”
The Notice also referred to the onset of low back pain with referred right leg pain in 2017 in respect of which there had been no suggestion at the time that employment had contributed to those symptoms.
The s 287A Notice relied on the opinion of Dr Miniter. The Notice stated:[32]
“Dr Miniter did not believe you suffered a workplace injury and/or an aggravation injury due to your employment. Dr Miniter believed you suffer from a degenerative spinal lesion which was identified over a period of years and progressed inexorably.”
[32] ARD p 145.
The Notice also reproduced further medical that I presume had come to light since
Dr Miniter’s report. It was concerned with the pre-existing state of Mrs Strong’s spine, and the Notice said:
“In light of the contemporaneous evidence, and with Dr Miniter's report in mind, we do not agree that you have suffered a workplace injury and/or a workplace aggravation injury.”

SUBMISSIONS

Oral submissions

Ms Goodman

I called on Ms Goodman to address first as I was, as indicated on the transcript, curious as to the basis of the respondent’s defence, after a protracted period of negotiations during conciliation.
Ms Goodman submitted that the applicant had to prove both injury and that the medical expenses claimed had been reasonably necessary. She submitted that the opinion of
Dr Miniter was supported by both Dr Christie and Dr Pavey. Dr Kleinman’s opinion was compromised by his not taking the history of the 2004 episode of back troubles that resulted in the applicant’s admission to Mater Misericordiae Hospital, she submitted.
When asked why Dr Miniter said Mrs Strong had not suffered an injury in the face of her statement, which he had before him, Ms Goodman said that the insurer had accepted liability for that injury and paid weekly compensation, but that Dr Miniter was not speaking about an injury acquired over a period of time, a proposition that was debated in argument.
Ms Goodman referred to Dr Miniter’s reference to the 2014 back issues, which she submitted had not been linked to any work conditions. Although Dr Miniter had referred to an MRI scan in 2017, Ms Goodman said that the investigation was in fact a CT scan.
The CT scan noted a background of degenerative disc changes, and evidence of acute herniation and impingement of the L5/S1 nerve root. The CT scan was not dissimilar to a later CT scan of 8 July 2020, she said. The history taken by Dr Miniter was considered by Ms Goodman. She noted that the medical expenses incurred regarding Mrs Strong’s VP shunt were not part of the present claim.
Dr Miniter had before him a comprehensive set of documentation, but the clinical notes from the Mater Hospital were not available. Whilst Dr Miniter took a consistent history of the applicant’s injury in 2010, Mrs Strong did not advise Dr Miniter of her injury recorded in the Mater Hospital in 2004. Neither did Dr Kleinman have any history of this event. She referred to the record of three episodes occurring that year, and that they were clearly concerned with the applicant’s back at a time she was not working.
Thus there was a history of 2004 back pain and earlier not taken by the medical practitioners. Ms Goodman referred to the lumbar X-ray and CT scan on 2 December 2010 which showed degenerative change. She referred to the report of Dr Christie of 28 August 2017. The relevant aspect of this evidence was that Dr Kleinman was unaware of a “fairly florid back condition” going back to 2004. Ms Goodman said she was troubled about the effect that history might have had on his opinion. Ms Goodman referred to the investigation of the neurological condition at John Hunter Hospital and the history given by Dr Younis of four seizures triggered by back pain and leg paralysis, which involved her tailbone.
Ms Goodman said that nowhere in that referral was there any reference to the work
Mrs Strong was doing at the time.
In discussion at that point Ms Goodman said that this referral occurred on 1 June 2020, the day Mrs Strong went off work. This was confirmed by Ms Hitchcock who was aware that the applicant thought that her shunt may have been involved. This was also confirmed by Dr Younis, who did not make any reference to the applicant’s workplace duties. This history was not known to Dr Kleinman and when combined with his ignorance about the 2004 history became extremely relevant to the applicant’s presentation, and indeed her credit, because she failed to mention the 2004 incident in her statement. Thus,
Ms Goodman submitted, I could not accept what the applicant said unless it was independently corroborated.
This was relevant as to whether the applicant had satisfied her onus of proof, I understood Ms Goodman to submit, as it casts doubt on Mrs Strong’s description of the origins of her back pain. At this point there was discussion as to whether any entry was present in the clinical notes of Mrs Strong’s GP for 1 June 2020. For some reason the clinical notes from the Mayfield Medical Centre had been lodged without the identification of either the dates or the name of the treating GP. However Mr Hart interposed at this point and said that the dates could be identified by reference to other documents and indeed as part of his written submissions supplied an aide memoir marrying up the entries and their dates, which
I accept as being accurate. During argument however the relevant clinical notes could not be found, and I indicated that I had a neutral curiosity about whether the entry for 1 June 2020, should one exist, contradicted the applicant’s statement.

Mr Hart

Mr Hart interposed at that point, noting that it was 4:45 pm, to point out that the applicant’s statement acknowledged that she had suffered an episode which she thought was connected to her shunt and that was indeed the reason why she was admitted to
John Hunter Hospital as a matter of urgency. As it turned out, Mr Hart submitted, when they had a look, the most urgent procedure indicated was the surgery to the lower back.
In view of the hour, Ms Goodman asked to complete her submissions in written form.
Mr Hart sought leave to make some submissions in the time remaining notwithstanding that Ms Goodman had not completed her submissions. I granted leave for Mr Hart to do so, noting that Ms Goodman consented to that course.
Although I indicated to Mr Hart that I did not need to hear her submissions about
Dr Miniter’s report, Mr Hart insisted on placing his submissions on the record.
Dr Miniter’s history that there was no injury was clearly incorrect, Mr Hart said, because injury had been accepted for the 2010 claim. I drew Mr Hart’s attention to his contention that although on 1 June 2020 the emergency was thought to involve difficulties with the applicant’s shunt, it turned out that it was her back that had been the cause. I sought
Mr Hart’s assistance in that regard.
Mr Hart referred to the results of the investigations taken originally in 2010 which showed disc lesions at L4/5 and L5 S1. That pathology was part of the accepted claim, and it fitted “hand in glove” with the pathology found at the time of the investigations by John Hunter Hospital in June 2020. That was the cause of her undergoing surgery in August 2020. The same pathology was found in 2017. Dr Miniter accepted that Mrs Strong was suffering from a cauda equina which had been successfully resolved by the surgery in August 2020, and that opinion confirmed that the expense involved in Mrs Strong’s undergoing that surgery was claimable, as it was reasonably necessary, being therapeutic in nature.
Dr Miniter was incorrect when he said there had been no injury, and he was incorrect to say that Mrs Strong was simply suffering from degenerative change and an osteophyte complex. The investigations since 2010 had shown that she was suffering from disc herniation which was successfully treated by the subject surgery.

Written submissions

Ms Goodman

Ms Goodman submitted that the s 78 Notice of 17 August 2020 raised the issue of injury pursuant to s 4, and whether employment was a substantial contributing factor or the main contributing factor to the aggravation exacerbation acceleration or deterioration of a disease process.
She relied on the report of Dr Miniter to establish that whilst Mrs Strong had degenerative disc disease as demonstrated in the investigations over some years, she did not suffer a workplace injury, and he disagreed with Dr Kleinman on that score.
Ms Goodman repeated her submissions regarding the significance of the 2004 admission to the Mater Hospital. She submitted that there was no clinical note made by the
Hamilton Doctors practice about this event.
Ms Goodman submitted that the applicant had not mentioned the 2004 event, nor her 2017 back problems in either of her statements. She only mentioned the problems with her back in 2010 and then 2020.
Ms Goodman considered the evidence concerning the 2017 events and referred to
Dr Christie’s report that there was right-sided disc protrusion at the L5/S1 level displacing the S1 nerve root.
Ms Goodman then considered the evidence regarding the applicant’s admission to
John Hunter Hospital at Neurology Outpatients on 1 June 2020, noting the reference to seizures leg paralysis and tailbone pain. This history was consistent with the statement given by Ms Hitchcock that Ms Goodman discussed in her oral submissions.
Ms Goodman submitted that there did not appear to be any evidence of attendances on any medical practitioners between 1 June 2020 and what appeared to be 13 July 2020 when Dr Min Sein completed a medical certificate, which was not a WorkCover certificate.
Ms Goodman referred to the entry by Dr Sein, which I accept was made on 9 July 2020, and which described the applicant as a “new patient”. Ms Goodman submitted that the references in that note to a recent neuro referral was consistent with the letter from
Dr Younis of 28 February 2020.
Ms Goodman referred to the John Hunter Hospital Neurology Discharge Referral of 14 August 2020 and quoted from the entries therein, which I have reproduced more fully.
Ms Goodman referred to the surgery on 26 August 2020 by Dr Ferch and submitted that there was no explanatory report from Dr Ferch as to why the operation was performed. There was accordingly no explanation as to whether the workplace conditions were causative. Ms Goodman submitted that the note suggested that although the discectomy was planned for the following week “it was difficult to tie this to the patient’s symptoms”.
“These matters” Ms Goodman submitted were completely unexplained, as was the gap between 1 June 2020 and perhaps 9 July 2020 when she was seen by Dr Sein for the first time. Ms Goodman submitted that it was for the applicant to prove that she sustained a work injury within the meaning of s 4 and that her employment was a substantial contributing factor/main contributing factor. The Commission would not be satisfied that she had satisfied her onus in that respect, I understood Ms Goodman to submit.

The only evidence supporting the applicant was that from Dr Kleinman. Ms Goodman observed that Dr Kleinman was an orthopaedic surgeon whilst Dr Ferch was a neurosurgeon. It could not be said that Dr Kleinman’s opinion was provided in a fair climate and he had in any event failed to express an opinion as to whether the employment was the main contributing factor, she submitted.
The main contributing factor, Ms Goodman submitted, was the underlying ventricular peritoneal shunt. The contemporaneous reports of 1 June 2020 and the statement by
Ms Hitchcock suggested that outcome, particularly since her shunt was tied off a short time after the back surgery.

Mr Hart

As already mentioned, Mr Hart compiled a comprehensive set of written submissions of 40 pages, 25 of which concerned the undated and unidentified entries in the clinical notes from the Mayfield Medical Centre. The entry in which the unidentified practitioner said that
Mrs Strong was a new patient was located as having occurred on 9 July 2020, as suspected by Ms Goodman.
Mr Hart also provided a chronology which utilised much of the contents of the clinical notes.
It is not necessary to reproduce the detail of Mr Hart’s most thorough submissions, as
I have not been persuaded by the respondent that the issues it raised in denying liability have displaced the prima facie case established by the applicant.
Mr Hart submitted that the submissions by the respondent “skated over” the reality that the insurer had accepted liability for the 2010 injury. He submitted further that the surgery was shown to be unrelated to the continuing problems Mrs Strong had to deal with as a result of her communicating hydrocephalus.

DISCUSSION

As I commented when first considering Mrs Strong’s statement, it was sparse as to detail. The respondent has relied on the plethora of material that has attended Mrs Strong’s long history of her struggles with her communicating hydrocephalus.
There was much that Mrs Strong could have said about that condition, but, vague as her statement was in some respects, once she described the history of its onset, she spoke mainly of the symptoms caused by her back condition and not those of her neurological condition.
The Neurology Discharge Referral from John Hunter Hospital made a distinction between the symptoms reported on the MRI scans of the brain and lumbosacral spine and the planned discectomy.
As I read the referral, it confirmed that there was no reason that the operation planned for 26 August 2020 could not take place. Ms Strong has a clearly identified disc problem. It was identified in 2004 as being associated with a lumbosacral disc prolapse, it was confirmed in 2010, when the insurer accepted liability for a sciatic condition, it was diagnosed by CT scan 2017 as involving degenerative change in the lower two discs, with right sided protrusion at L5/S1 displacing the S1 nerve root, and again in 2020 where a further CT scan found significant L4/L5 and L5/S1 disc extrusions. She has undergone a discectomy with Dr Perch in August 2020.
Submissions were also made that the applicant had failed to establish that the main contributing factor was her employment.
The main contributing factor, Ms Goodman submitted, was the underlying ventricular peritoneal shunt. The contemporaneous reports of 1 June 2020 and the statement by
Ms Hitchcock suggested that outcome, particularly since her shunt was tied off a short time after the back surgery, it was argued.
There are a number of difficulties with the respondent’s argument. Accepting for the sake of argument that it was open for the respondent to raise the issue, the opinion of Dr Miniter, on which it relied, expressly negated that contention. He was asked in precise terms whether he believed the applicant’s ventricular shunt (and her degenerative spine, but more about that later) was a substantial or the main contributing factor. Dr Miniter expressed his opinion plainly that the ventricular peritoneal shunt was “of no concern”.
Moreover, as I have found, the Neurological Discharge Referral from John Hunter Hospital on 14 August 2020 was to investigate the implications of the proposed spinal surgery the following week on 26 August 2020 on Mrs Strong’s neurological symptoms caused by her communicating Hydrocephalus. The assessment had been made following an MRI arranged by Dr Pavey, with which Mrs Strong presented to the Neurology department of John Hunter Hospital on instructions from Dr Pavey, as the referral noted.
The evidence thus supports Dr Miniter’s opinion that the ventricular peritoneal shunt was not a contributing factor to her spinal condition, and I accept that part of his advice.
The respondent also submitted that Dr Miniter’s opinion should be accepted that there had been no aggravation of the degenerative spinal lesion, which he said had been identified over a number of years and had progressed inexorably.
In fact, Dr Miniter said that he could see no evidence of “substantial” aggravation to
Mrs Strong’s disease condition, which raises a problem from the outset with the respondent’s submission. Section 4 of the Workers Compensation Act 1987 (the 1987 Act) provides relevantly:
“‘injury’--
(a) means …
(b) includes a
‘disease injury’ , which means--
(i) …
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, …”
There is no requirement that the aggravation (or exacerbation, acceleration or deterioration) of a disease condition be “substantial”.
In any event, I have difficulty in following Dr Miniter’s reasoning. He commented that he could see no evidence of “significant” injury such that the applicant’s presentation was related to the workplace, in disagreeing with Dr Kleinman’s opinion. He also said that
Mrs Strong’s incapacity did not result from any “specific” injury, and he said that the applicant “simply” had degenerative disease. He also said that there were “no workplace injuries”.
Ms Goodman sought to explain Dr Miniter’s opinion by saying that he was referring only to personal injury at the workplace, but I do not accept that a qualified medico-legal expert of Dr Miniter’s experience would be ignorant of the legal definition of injury as set out in s 4 of the 1987 Act.
In any event, Dr Miniter failed to explain the facts and circumstances on which he reached his conclusion, assuming that Dr Miniter did suggest that there had been no aggravation.
I was asked to find against Mrs Strong’s credit, but Dr Miniter himself found that she was a “straightforward individual” who did not demonstrate abnormal illness behaviour. He listed Mrs Strong’s statement as being amongst the documentation he had been supplied with, but made no attempt to engage with her evidence.
Mrs Strong gave cogent evidence of her continued problems with her back which she said were caused by the nature of the work she performed as a checkout operator – a position she had held since 2008. Her bona fides were clearly indicated by the 2017 flare-up. She was happy to tell Dr Christie that her back had settled down when the pathology he discussed at that time clearly indicated the lower two discs – including a disc protrusion at L5/S1 impinging the S1 nerve root, which was precisely the pathology that was the subject of her eventual surgical treatment with Dr Pavey on 26 August 2022 – the subject of this application.
I take no adverse inference against the applicant not referring to her 2004 treatment or episodes of back pain – nor indeed of her not referring to the 2014 recurrence or 2017 investigations, which she advised Dr Kleinman about in any event. Whilst her evidence was sparse, it was not misleading, and her history to her doctors I can take notice of in any event. I have trouble in understanding why I should disbelieve Mrs Strong because she did not mention the 2004 problems. Events had well overtaken her since that time and I could find nothing sinister in the omission of that particular history. It may well be that
Mrs Strong’s back problems have some relationship to her communicating Hydrocephalus, which had a major effect on her early life, but it has no relevance to her present condition, as was found by Dr Miniter.
The claim is for s 60 expenses as set out in the ARD, together with the additional claim made at the outset of the hearing for a general order. I find the surgery to have been reasonably necessary – indeed there has been no submissions to the contrary. During her submissions Ms Goodman stressed that the expenses sought were not in relation to the treatment for the ventricular peritoneal shunt, and no argument was addressed to the costs of the discharge referral of 14 August 2020 from the Neurology Department of John Hunter Hospital. If there were any such costs, I would observe that they would be a legitimate expense in view of my findings.

[2022] NSWPIC 358

6 July 2022