Tepic v ISS Property Services Pty Ltd
[2022] NSWPIC 80
•24 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tepic v ISS Property Services Pty Ltd [2022] NSWPIC 80 |
| APPLICANT: | Ruza Tepic |
| RESPONDENT: | ISS Property Services Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 24 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for the cost of lumbar spinal surgery pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); injury in issue under section 4 of the 1987 Act, and submission that any reasonably necessary surgery resulted more from the nature and conditions of the applicant’s employment as a school cleaner rather than a frank incident when lifting a vacuum cleaner; detailed examination of medical evidence; finding of frank injury on the date claimed by the applicant; finding that surgery reasonably necessary as a result of the claimed frank injury; Diab v NRMA Ltd considered; Held- respondent ordered to pay doe the costs of and incidental to the lumbar spinal surgery proposed by the treating neurosurgeon. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to her lumbar spine on 18 March 2019 arising out of or in the course of her employment with respondent. 2. The surgery proposed by Dr Khong, namely L4/5 anterior lumbar interbody fusion, is reasonably necessary as a result of such injury. 3. The respondent is to pay for the costs of and incidental to the surgery pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Ruza Tepic (the applicant/Ms Tepic) claims compensation for the cost of surgery on her lumbar spine, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), as a result of injury arising out of or in the course of her employment with ISS Property Services Pty Ltd (the respondent) as a school cleaner at Blakehurst Public School on 18 March 2019.
Ms Tepic claims on that day that she, “…while swinging vacuum on to left shoulder suffered severe injury to lower back, lumbar spine with radiculopathy, hips, anxiety and depression”.[1]
[1] “Injury Details – 18/03/2019” in Application to Resolve a Dispute dated 22 October 2021 (the ARD).
The respondent accepted liability for the applicant’s claim for injury on 18 March 2019. It paid her weekly benefits and compensation for medical expenses pursuant to s 60 of the 1987 Act, including for the cost of surgery carried out by Dr Khong, neurosurgeon and spine surgeon, on 17 July 2019. Dr Khong carried out a left L4/5 microdiscectomy and left L5 rhizolysis. The acceptance of liability for the cost of this surgery followed an independent medical examination of the applicant by Dr Paul Hitchen, orthopaedic surgeon, on 27 June 2019, who in a report of that date diagnosed Ms Tepic as having suffered an extension of a degenerative disc herniation towards the left precipitating a left L5 radiculopathy on 18 March 2019. Dr Hitchen advised that it was probable that Ms Tepic would come to a decompressive laminectomy with partial discectomy and decompression of the left L5 nerve root.
The applicant continued under the care of Dr Khong who recommended further conservative treatment of the injury until he saw her on 22 February 2021 with worsening bilateral upper buttock/lower back pain, worse on the right. Ms Tepic told Dr Khong that over the previous five to six weeks she felt like the numbness in the posterior left thigh and calf to the bottom of the left foot had been worse. She had pins and needles and numbness in the leg when sitting for over 30 minutes. The left leg pain remained better than it was, but still troubled her in the afternoon. Having regard to the failure of non-operative management for her back pain that had not improved significantly, Dr Khong recommended an L4/5 anterior lumbar interbody fusion, and made a request for surgery to the respondent.
The respondent arranged for the applicant to be independently medically assessed by
Dr Casikar, neurosurgeon, on 10 February 2020 and again on 10 January 2021. In a report dated 10 March 2021 Dr Casikar noted the earlier surgery, which according to the applicant had not helped, and the suggestion by Dr Khong that that she should undergo an L3/4 and L4/5 fusion. Dr Casikar expressed the opinion that the spinal fusion recommended by
Dr Khong was not because of a workplace injury, but because of degenerative disease of the lumbar spine, the prognosis for which was very poor. The doctor said that Ms Tepic had a failed back syndrome and that further surgery was not likely to make any difference.On 21 April 2021 the respondent issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it declined liability for the cost of the surgery proposed by Dr Khong, on the basis that the proposed L4/5 anterior lumbar interbody fusion was not reasonably necessary as a result of the injury alleged by the applicant.
The applicant sought a review of the s 78 notice dated 21 April 2021, supported by a report of Dr Drew Dixon, orthopaedic surgeon, who independently medically examined her on 29 June 2021 and prepared a report dated 6 July 2021.
On 13 September 2021 the respondent issued to the applicant a notice under s 287A of the 1998 Act in which it maintained the decision in the s 78 notice dated 21 April 2021 to deny liability for the cost of surgery proposed by Dr Khong.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Did the applicant sustain injury to her lumbar spine arising out of or in the course of her employment on 18 March 2019 (s 4 of the 1987 Act)?
(b) Has the applicant fully recovered from the effects of any injury sustained in the course of her employment?
(c) Has the applicant an entitlement to weekly payments of compensation (s 33 of the 1987 Act)?
(d) Has the applicant an entitlement to the cost of medical and related expenses under s 60 of the 1987 Act, in particular, for the cost of the surgery recommended by Dr Khong being an L4/5 anterior lumbar interbody fusion. Is such treatment reasonably necessary as a result of any alleged injury sustained in the course of the applicant’s employment?
Although the respondent submits that the issue referred to in [9(c)] above remains in dispute, it is noted that the applicant is not claiming weekly payments in the current proceedings.
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 conciliation/arbitration hearing on 14 February 2022. Mr Morgan of counsel appeared for the applicant briefed by Mr Bell. The applicant attended on a separate line. Mr Barter of counsel appeared for the respondent briefed by Mr Murray.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) dated 25 January 2022 lodged by the applicant with the following attachments:
(i)letter Martin Bell & Co to Dr Khong dated 29 November 2011;
(ii)report Dr Khong dated 1 December 2021;
(d) AALD dated 14 February 2022 lodged by the applicant with statement of Nada Dimanoski dated 18 June 2019 attached;
(e) report Dr Hitchen, orthopaedic surgeon, dated 27 June 2019, and
(f) report Dr Casikar, neurosurgeon, dated 10 March 2021.
Oral Evidence
There was no application to cross-examine the applicant or to adduce oral evidence.
The applicant’s case
The applicant’s evidence is in her statement dated 22 October 2021[2] in which she says that she started as a cleaner with the respondent on 1 March 2019 when it took over cleaning of Blakehurst Public School from Menzies. Her duties as a cleaner with Menzies were that same as they were with the respondent. She was employed on a part-time basis working the morning shift from 4.50 am to 8.05 am and afternoon shift from 3.30 pm until 6.15 pm.
[2] Application to Resolve a Dispute (ARD) p 16.
The applicant was involved in a car accident in 2005 when she injured her lower back. She says that it was not serious and that she injured one of her discs. She lodged a CTP claim with the insurer and did not work for five years until she commenced at Blakehurst High School in 2010. Her treating doctor was Dr Kuzmanovski and she was referred to
Dr Rosenberg for an opinion who cleared her fit for work in 2007. Ms Tepic says that she had never suffered an injury to her lower back prior to 2005, and that since about 2007 she had not been back to the doctor about her back.The applicant’s duties in her employment for the respondent included dusting, vacuuming with a back pack vacuum, general cleaning, and high dusting. She did not use a floor polisher as there were carpets. She cleaned and vacuumed rooms in different blocks of the school, mopped the floor in the canteen, lunch room and sick bay three times a week using a mop and bucket.
On 18 March 2019 Ms Tepic was engaged in her normal duties as she had done for the previous 10 years. Prior to that date she had not reported any physical pain to her manager or work colleagues. Her manager was Rakesh who sometimes came to the school. Theoretically, Ms Tepic states, that if she had any problems on the job she could contact Rakesh by telephone or text message, but that that would not be a very clever approach if you wanted to keep your job.
At around 6.00 am on 18 March 2019 whilst engaged in her normal duties the applicant swung the vacuum onto her back, first putting the strap of the vacuum over her left shoulder, then swinging the vacuum over her back and putting the other strap over her right shoulder. At that stage she felt pain on her back. She finished vacuuming a room and felt some pain in her left hip and left leg as she was putting the vacuum on her back. It was a sharp pain, and from that time she has had more and more pain through her left leg.
Nada came to the office to pick up some papers and the applicant reported to her that something had happened when she put the vacuum on her back and that she was feeling pain in her left leg. The applicant did not do any more vacuuming work that day and walked slowly home at the end of her shift. She did not report the injury to Rakesh before leaving school as she wanted to keep her job and hoped that the injury would pass. Ms Tepic did not work the afternoon shift of 18 March 2019, but her daughter did the work for her. She did not tell Rakesh this; she knew that it was incorrect for her daughter to do the work but wanted to keep her job.
At a later date that she could not recall, the applicant reported the injury to Rakesh. She has not returned to the workplace. Ms Tepic says that she first saw Dr Kuzmanovski on 19 March 2019 when she was issued with a medical certificate. She took sick leave, and saw
Dr Kuzmanovski again on 20 March 2019 with pain in her lower back and numbness in the left side. The doctor arranged radiological investigation of her lumbar spine.The applicant was referred to Dr Rosenberg by Dr Kuzmanovski. Dr Rosenberg ordered a cortisone injection. On 17 April 2019, Dr Kuzmanovski referred the applicant to Dr Khong.
On 15 July 2019 the applicant underwent a left L4/5 microdiscectomy and left lumbosacral rhizolysis at the hands of Dr Khong, who continued to treat her throughout 2019 and into 2020.
On 22 February 2021 Dr Khong recommended a L4/5 anterior interbody fusion. The insurer rejected Dr Khong’s request for surgery on the basis of an examination and report from
Dr Casikar. The applicant subsequently saw Dr Rosenberg again who she says considered the proposal for surgery made by Dr Khong to be appropriate.In the ARD lodged with the Commission on 25 October 2021, the applicant seeks an award for medical expenses pursuant to s 60 of the 1987 Act for the cost of the surgery recommended by Dr Khong.
The respondent’s case
The respondent has issued two notices dealing with the denial of liability for the applicant’s claim in the ARD, namely:
(a) a notice pursuant to s 78 of the 1998 Act dated 21 April 2021[3], and
(b) a notice pursuant to ss 78 and 287A of the 1998 Act dated 13 September 2021[4].
[3] ARD p 3.
[4] ARD p 10.
In the s 78 notice dated 21 April 2021 the respondent noted the history of the injury claimed by the applicant on 18 March 2019 and her treatment by Dr Khong, including the decompression surgery in July 2019, and the more recent request from Dr Khong dated 22 February 2021 for approval of surgery in the form of L4/5 anterior lumbar interbody fusion in view of the failed non-operative treatment of the applicant’s back pain. Reference is made to the independent medical examination carried out by Dr Hitchen and report thereon dated 27 June 2019. Dr Hitchen concluded that the applicant suffered from of a disease of gradual onset in the nature of spinal canal stenosis and that employment had been the main contributing factor to the aggravation, acceleration, exacerbation, and deterioration of that disease. Dr Hitchen was of the opinion that, on the face of it, the claimed surgery was to treat the effects of the work injury.
The surgery to which reference was made by Dr Hitchen was a decompressive laminectomy with partial discectomy and decompression of the left L5 nerve root.
The author of that s 78 notice then made reference to the more recent independent medical examination of the applicant conducted by Dr Casikar and his report thereon dated 11 February 2020. Dr Casikar noted the treatment of Ms Tepic after the injury and the microdiscectomy at L4/5. The doctor concluded that under normal circumstances the applicant should have been fit to return to her pre-injury duties with some restrictions and that in his opinion workplace aggravation had ceased.
Following the latest request for surgery Dr Casikar re-examined the applicant on 10 January 2021 and produced a report dated 10 March 2021 in which he provided a diagnosis of failed back syndrome, and chronic pain syndrome. Dr Casikar was of the opinion that the applicant’s present symptoms were probably due to degenerative disease of the spine and significant pain related issues. He was of the opinion that the surgery suggested by Dr Khong was not required because of the workplace injury, but mainly because of degenerative disease of the lumbar spine. The respondent was not therefore liable for the cost of surgery suggested by Dr Khong. Ongoing liability for the applicant’s claim was disputed.
In the notice issued pursuant to ss 78 and 287A dated 13 September 2021, the respondent listed six matters in dispute, four of which were confirmed as issues remaining in dispute at the arbitration hearing on 14 February 2022. These are listed at [9] above. The author of the notice referred to a report provided by ClearScope, which was commissioned to undertake a factual investigation, and to its report dated 24 June 2019. Reference was made to the applicant’s statement dated 30 May 2019 and to a short statement of Rakesh Suja dated 13 July 2019. The treatment of Ms Tepic subsequent to her injury was referred to, as was the opinion of Dr Casikar following his most recent examination (on 10 January 2021), which resulted in the report dated 10 March 2021. Reference was also made to the general practitioner clinical notes, which did not contain a history of the applicant’s back symptoms being work-related until 13 May 2019, until which time Ms Tepic was submitting non workers compensation certificates over the period of time until then. The author of the notice asserted that the injury was seemingly only reported after the applicant was advised by Dr Rosenberg that she required surgery, and that he did not perform surgery in the public system.
The information, reports and documentation obtained or received by respondent (a self-insurer) which were relevant to the decision to dispute liability were listed as:
(a) factual investigation report ClearScope dated 24 June 2019, together with all annexures;
(b) Certificates of Capacity – various;
(c) CT scan lumbar spine dated 8 April 2019;
(d) MRI scan lumbar spine dated 11 April 2019;
(e) Dr Hitchen, IME report dated 27 June 2019;
(f) Vocational Assessment Report dated 16 October 2019;
(g) Dr Andrew Keller, IMC report dated 18 April 2020;
(h) surveillance report ClearScope dated 18 April 2020, and
(i) Dr Casikar, IME reports dated 11 February 2020 and 10 March 2021.
There is a further, supplementary, report of Dr Casikar in evidence dated 13 October 2021 in which the doctor records further documentation reviewed including, relevantly:
(a) his earlier report dated 11 February 2020;
(b) report of Dr Hitchen dated 27 June 2019;
(c) report of Dr Ian Smith dated 29 October 2019;
(d) reports of Dr Khong of various dates;
(e) report of Dr Dixon dated 6 July 2021;
(f) clinical records of Dr Kuzmanovski, and
(g) update report of Dr Khong dated 2 February 2021.
In the supplementary report Dr Casikar, when asked that given the inconsistencies “…outlined above…” he confirms whether in his opinion the worker suffered any injury to the lumbar spine in the incident occurring on 18 March 2019, and if so, details of the nature of the injury, states:
“Thank you for the documentation. In my report I had indicated that Ms Tepic had a
work related injury on 18/03/19. This was based on what she indicated to me.
Therefore I assumed that it was accurate. However on consideration of the
documents you have now provided there is no mention of any work related injury.
Both Dr Khong and Dr Kuzmanovski do not make any reference to a workplace
injury.
Therefore based on the documentation you have provided I would like to accept that
there was no recorded incidents of workplace injury. However I cannot verify this fact except to go by what Ms Tepic has indicated and the documents that you have
provided.”
When asked for his belief that the worker’s employment was the main contributing factor to any injury “he” [sic] may have sustained, Dr Casikar says:
“With the fresh information I do not believe there is enough evidence to support that
the employment was the main contributing factor. I had indicated in my previous
report that the employment was a contributing factor. Based on the history however I need to change this opinion with the additional information provided by your office.”
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained on request. They will not be repeated in full. In summary, they are as follows.
Applicant
The applicant submits that, despite what is in effect the late notification of a dispute with respect to injury per se, such notification is a “curious development.” This is having regard to the fact that the injury occurred about three years ago, liability was accepted by the insurer (noting that the respondent is a self-insurer), and payments of compensation were made to the applicant in respect of weekly benefits and medical expenses including the cost of the initial surgery carried out by Dr Khong. The respondent accepted liability following receipt of the ClearScope report dated 24 June 2019, which pre-dated the original surgery and which is not in evidence. There is in evidence a statement from the applicant’s supervisor, Rakesh Suva dated 19 June 2019[5], which formed part of the respondent’s decision making process in accepting liability in 2019. No other statements were received at that time, and the report of Dr Hitchen dated 27 June 2019 was also relevant to the respondent’s acceptance of liability for the applicant’s injury.
[5] Reply p 55.
Dr Hitchen refers in his report to a co-worker “…Mrs Diminovski [sic] at point 41” when he says that his understanding is that this person witnessed the effects of injury in a contemporaneous manner.
The applicant notes that the respondent, in its s 78 notice dated 21 April 2021 accepts that Ms Tepic had suffered injury in the form of aggravation of a pre-existing disease, but based on the opinion of Dr Casikar asserts that the effects of such injury had ceased (“You have fully recovered from the effects of any injury sustained in the course of your employment”). The applicant submits that the respondent had at that time the statements of Nada Dimanoski dated 18 June 2019[6] and Rakesh Suva dated 19 June 2019.
[6] AALD dated 14 February 2022.
The applicant notes that in September 2021 the respondent issued a revised s 78 notice in which liability is denied for the occurrence of the injury, relying on s 4 of the 1987 Act. This denial of liability for injury must be viewed in the context of the applicant’s evidence of a long, varied, and uninterrupted (apart from the effects of a car accident in 2005) working life which continued until March 2019, after which she has not returned to work. The applicant had a bad outcome from the surgery in July 2019 carried out by Dr Khong.
The applicant submits that an adverse inference should be drawn from the failure of the respondent to place in evidence the ClearScope factual report, on the basis of which, together with the report of Dr Hitchen, liability for her injury was originally accepted by the respondent.
The applicant submits that the Commission would be satisfied as to the occurrence of the injury claimed by her on the basis of her evidence, the evidence of co-worker Nada Dimanoski and the factual report which provided the respondent with information with which to accept liability.
The applicant submits that in response to the opinion of Dr Casikar that the effects of injury on 18 March 2019 have ceased is the evidence of the treating general practitioner,
Dr Kuzmanovski, in his clinical note of 22 April 2021[7]. This note records the continuing requirement of Ms Tepic for significant medication for her low back pain, referred to previously in the clinical notes, and the pain from which she was currently suffering.[7] ARD p 62.
The applicant relies on the continued presentation to the treating neurosurgeon, Dr Khong, over the period from 2019 to 2021, and to Dr Rosenberg who first saw her in 2005 and more recently in 2019 and 2021[8]. Ms Tepic was clearly presenting to Dr Rosenberg with back dysfunction consistent with her presentation to Dr Khong. Dr Khong has exhausted all non-operative measures to treat the applicant and now recommends further surgery by way of fusion, endorsed by Dr Rosenberg. This recommendation was also supported by Dr Dixon in his report dated 6 July 2021[9].
[8] ARD p 170.
[9] ARD p 32.
Respondent
The respondent refutes the suggestion in the applicant’s submissions that she was not favoured with evidence in her case, and that it was “hidden” from her. The respondent submits that evidence referred to in the first s 78 notice and subsequently was always available, and that there was nothing to prevent the applicant requesting such evidence. When pressed if there was an obligation on the applicant to seek such evidence in support of her case, the respondent submitted that, in any event, it did not need the evidence referred to in the s 78 notices but not served on the applicant to make out its defence of the applicant’s claim.
The respondent notes that, in respect of the issue of injury, Dr Khong does not receive a proper history of the injury which the applicant claimed she suffered on 18 March 2019. In this regard, reference is made to the report of Dr Khong dated 1 December 2021 prepared in response to the letter from the applicant’s solicitors dated 29 November 2021[10]. The question put to Dr Khong is based on the premise of an injury suffered on 18 March 2019 while swinging a vacuum onto her left shoulder as a result of which she suffered injury to her lower back. However, Dr Khong in his report says in response to the question:
“Is the description of injury set out consistent with your findings on examination and your assessment of
Mrs Tepic?”
that
“Yes. Mrs Tepic developed lower back pain and left leg pain as a result of working as a cleaner in schools for many years.”
[10] AALD pp 2 and 3-6.
The respondent therefore submits that Dr Khong is basing his findings of an injury arising out of or in the course of the applicant’s employment with the respondent on a “nature and conditions” type of injury rather than a frank incident which occurred on 18 March 2019. The respondent therefore poses the question “Did the injury actually happen?”. The respondent submits that Dr Khong was “fed the injury” which occurred on 18 March 2019, and that he has not responded to the question posed of him.
The respondent submits that there is no history of an injury occurring on 18 March 2019 now relied upon by the applicant, and that there is no contemporaneous report of such injury.
The respondent notes the entry in the clinical notes of Dr Kuzmanovski dated 20 March 2019[11] in which there is reference to backache, the fact that the applicant did not go to work and the need for a certificate. The respondent also refers to the entry in the clinical notes dated 24 April 2019 of Dr Kuzmanovski[12] when the doctor notes that Ms Tepic has been seen by Dr Rosenberg who suggest an operation, and that since he does not operate in public (hospitals), he has referred her to a colleague. The applicant was noted as still not able to go back to work and in need of a certificate. There is, significantly according to the respondent, no reference to a work injury.
[11] ARD p 47.
[12] ARD p 49.
The respondent submits that there is no reference to a history of injury at work until 13 May 2019[13], after the consultation with Dr Kuzmanovski when it was noted that the applicant required further surgery. In this regard, reference is made to the report of Dr Rosenberg dated 11 April 2019[14] in which Dr Rosenberg records a sudden development of left leg pain on a background on minimal discomfort in her back. There is no record of a work injury in this report of Dr Rosenberg. Similarly in the subsequent report of Dr Rosenberg dated 17 April 2019[15] in which the doctor recommends the appropriate surgery as an L4/5 decompression and discectomy, and that as he no longer works in the public system, he gave the applicant a list of names of people who would be able to offer her expert care in the public system.
[13] ARD p 50.
[14] ARD p 93.
[15] ARD p 94.
The respondent notes that Dr Khong in his report dated 6 May 2019[16] noted the motor vehicle accident 12 years previously and intermittent back pain since, and worsening left leg pain in the previous five to six weeks. Again, according to the respondent, there is no reference to a work caused injury to the lower back. The respondent submits that this was the opportunity for the applicant to provide to Dr Khong a history of the work caused in jury to her lower back om 18 March 2019.
[16] ARD p 95.
The respondent submits that it paid expenses pursuant to s 60 of the 1987 Act on the basis of specialist opinions that do not support a frank injury which occurred as claimed by the applicant. Dr Khong in his report dated 1 December 2021 does not accept that the applicant suffered a frank injury on 18 March 2019. The respondent poses the question “What support is there for a frank injury other than the statement of Nada Dimanoski?”.
The respondent submits that the statement of Nada Dimanoski does not provide contemporaneous evidence of the injury claimed by the applicant to her lower back, or corroboration of her evidence, but rather a contemporaneous record of what the applicant told Ms Dimanoski occurred when she claims to have injured her back.
The respondent accepts that Dr Hitchen relied upon the statement of Nada Dimanoski in making his finding in respect of injury on 18 March 2019, and that it was “misled” by
Dr Hitchen’s reliance on the evidence of Ms Dimanoski. The opinion of Dr Hitchen in respect of injury is not consistent with the opinions of the specialists who have treated the applicant, and examined the need for treatment of her spinal condition. This submission also applies to the opinion of Dr Kuzmanovski. The respondent submits that the failure of Dr Kuzmanovski to record in his clinical notes of a complaint of work caused injury to the applicant’s lower back between 20 March 2019 and 13 May 2019, a period of two months, is significant in respect of the issue as to whether the applicant suffered an injury to her lower back on 18 March 2019. It was not until the applicant was clearly appraised of the need for expensive surgery in May 2019, and that the best way to have it done was through the workers compensation system, that she made complaint of work caused injury to her lower back.In essence, the respondent submits that there is no contemporaneous record of the injury of the nature now claimed by the applicant, and of the consequent need for surgery as a result of such injury.
The respondent submits that:
(a) the applicant did not suffer injury to her lower back on 18 March 2019, or alternatively,
(b) whatever injury was suffered on that day by way of aggravation of a pre-existing degenerative condition in the lumbar spine does not result in the reasonable necessity for the L4/5 anterior lumbar interbody fusion now recommended by
Dr Khong.The respondent notes that a “nature and conditions” type claim of injury is not pleaded, and that any current need for surgery is not the result of the injury relied on by the applicant in the current proceedings.
The respondent submits therefore that an award for the respondent should be made in its favour.
Applicant in response
In response the applicant notes that the clinical notes of Dr Khong and Dr Kuzmanovski should be treated with caution, bearing in mind what the Court of Appeal said in Davis v Council of the City of Wagga Wagga[17], where the Court said that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury”. The applicant submits that treating doctors often do not take note of a specific incident, but the insurer accepted that the applicant suffered a frank injury on the basis of what was said by a co-worker and Rakesh Suja; there is no incident report in evidence, and that the evidence of the co-worker Nada Dimanoski should be accepted.
[17] [2004] NSWCA 34 (Davis).
The applicant submits that she is not faking her symptoms or exaggerating her condition as opined by Dr Casikar, and the fusion surgery proposed by Dr Khong is reasonably necessary as a result of the injury she suffered on 18 March 2019. The three treating practitioners,
Dr Khong, Dr Rosenberg, and Dr Kuzmanovski are in the best position to assess the reasonable necessity for the fusion surgery advocated by Dr Khong.
Further submission of the respondent
The respondent submits that the statement of Nada Dimanoski dated 18 June 2019, referred to hereunder, post-dates the first record of an actual incident on 18 March 2019 when
Ms Tepic alleges she injured her back.
FINDINGS AND REASONS
Evidence at the arbitration hearing
The documents in [13(a)-(c)] above were obviously available prior to the conciliation/arbitration hearing on 14 February 2022. According to a submission by the applicant’s counsel at the hearing, and not disputed by the respondent, the statement of Nada Dimanoski dated 18 June 2019 was served on the applicant’s solicitor on 7 February 2022 together with a report of Dr Hitchen dated 27 June 2019. The applicant tendered the Dimanoski statement at the arbitration hearing and it was admitted into evidence without objection from the respondent. The reports of Dr Hitchen, and of Dr Casikar dated 10 March 2021 ([13(e) and (f)] above), were tendered by the respondent at the hearing and admitted without objection from the applicant. Those two reports were subsequently lodged by the respondent with the Commission with an AALD dated 14 February 2022.
It is apparent from this sequence of events that the applicant was not served with the statement of Nada Dimanoski dated 18 June 2019 and the report of Dr Hitchen dated 27 June 2019 until seven days before the hearing. The report of Dr Casikar dated 10 March 2021 is not attached to the Reply, although it is listed in the first s 78 notice dated 21 April 2021, and referred to and summarised in the review notice pursuant to ss 78 and 287A of the 1998 Act dated 13 September 2021 attached to the ARD and Reply. The report itself did not become available to the applicant until the day of the hearing. The report of Dr Hitchen is also listed in both notices. The ClearScope factual report dated 24 June 2019 commissioned by the respondent is not in evidence.
This was evidence held by the respondent and relevant to its denial of liability for the cost of surgery now sought by the applicant. Notwithstanding this apparent failure, the respondent in the ss 78/287A review notice now seeks to put in issue whether or not the applicant sustained injury to her lumbar spine arising out of or in the course of her employment on or about 18 March 2019, relying on s 4 of the 1987 Act. This is against the background of the respondent’s initial acceptance of liability for the applicant’s injury on 18 March 2019 and payment of weekly benefits plus the cost of surgery carried out by Dr Khong on 17 July 2019.
I do not accept the respondent’s submission that it was always open to the applicant to request evidence referred to in the dispute notices but either not attached or previously served. It is the responsibility of an employer/insurer to clearly state the issue(s) in dispute in a s 78 notice and serve on a worker the evidence relied upon in support of its defence of the worker’s claim.
As an alternative submission, the respondent asserts that whatever injury was suffered on 18 March 2019 by way of aggravation of a pre-existing degenerative condition in the lumbar spine does not result in the reasonable necessity for the L4/5 anterior lumbar interbody fusion now recommended by Dr Khong. This submission is in accordance with what
Dr Casikar says in his report dated 10 March 2021 that:“The spinal fusion suggested by Dr Khong is not because of a workplace injury she had earlier. Spinal fusion is mainly because of degenerative disease in the lumbar spine.”
Injury on 18 March 2019
In submitting that there should be no finding of injury on 18 March 2019 the respondent places great weight on the fact that it was not until it was evident that the applicant required surgery in May 2019 that she decided to make a claim for workers compensation. There is no reference in the clinical records or treating reports of Dr Kuzmanovski (until 13 May 2019), Dr Rosenberg, or Dr Khong of a work injury on 18 March 2019.
The clinical notes of Dr Kuzmanovski are in evidence and it is not until the applicant’s visit to the doctor on 13 May 2019[18] that a history of the applicant injuring her back on 18 March when lifting a vacuum to put on her back and felt pain in the lower back, with radiation to the left leg and hip, is recorded. Dr Kuzmanovski noted that a CT (scan) was done and Ms Tepic was referred to Dr Rosenberg. Dr Kuzmanovski had seen the applicant initially on 20 March 2019 with a history of:
“Backache.
Didn’t go to work.
Needs certificate”
[18] ARD p 50.
Dr Kuzmanovski saw Ms Tepic on seven further occasions until 13 May 2019, on a number of which he recorded complaints of lower back pain and left sided lumbar radiculopathy. On 8 April 2019 left sided radiculopathy was recorded as continuing, and on 9 April Ms Tepic was referred to Dr Rosenberg. On 17 April 2019 she was referred to Dr Khong.
Dr Rosenberg saw the applicant on 11 April 2019[19] when he recorded that he had not seen her for many years and noted past problems with her back due to a motor vehicle accident which had largely settled. He noted sudden development of left leg pain on a background of minimal discomfort in the back. He said that on a CT scan, Ms Tepic has had significant stenosis at L4/5 with a prominent left sided protrusion, which was causing significant impingement of the L5 nerve root. A nerve root block was recommended to the symptomatic side. If it did not help rapidly, an MRI was suggested.
[19] ARD p 93.
On 17 April 2019[20] Dr Rosenberg reviewed the applicant with the result of an MRI scan. He said that a nerve root block did not help and that the scan revealed some stenosis at L4/5 with a left sided protrusion, not big, but big enough to cause problems. Dr Rosenberg expressed the belief that the applicant was quite genuine, and that as she was not getting better, appropriate surgery consisting of an L4/5 decompression and discectomy was recommended. As he no longer worked in the public system, the doctor referred Ms Tepic to other specialists who could assist.
[20] ARD p 94.
In his report dated 6 May 2019[21] Dr Khong records a history of worsening left leg pain five to six weeks previously. He examined the applicant and noted the MRI dated 11 April 2019 and the dynamic lumbar spine x-ray dated 17 April 2019. He said that Ms Tepic describes S1 radiculopathy, but that her scan demonstrates L5 compression. The injection of that nerve root gave no pain relief. He organised for the applicant to have a bone scan which was carried out on 15 May 2019, together with an x-ray of the left hip.
[21] ARD p 95.
Dr Khong saw the applicant again on 30 May 2019[22] and noted that she was unresponsive to medications or perineural injection. He organised for her to have an MRI of her leg to exclude a sciatic nerve tumour, and said that it that was normal, he would perform a left L4/5 microdiscectomy. Dr Khong made a request for surgery on 2 July 2019 and in a further report dated 4 July 2019 said that there was an excellent chance that the surgery would help
Ms Tepic’s left leg pain.[23][22] ARD p 104.
[23] ARD pp 106 & 108.
In his report to Dr Kuzmanovski dated 15 July 2019[24] Dr Khong notes that the applicant works as a cleaner in a school which involves a fair amount of manual labour and bending. He notes the motor vehicle accident 12 years previously and worsening left leg pain earlier in the year. He says that it was reasonable to perform a left L4/5 microdiscectomy for left leg pain and that he would operate on Wednesday.
[24] ARD p 110.
Dr Hitchen saw the applicant at the request of the respondent on 26 June 2019 and produced a report dated 27 June 2019. The history of injury recorded by him is as follows:
“Mrs Tepic recalls a lower back injury on 18 March 2019. In the morning, she had been cleaning, and placed on a backpack vacuum cleaner. She cannot recall exactly if she put her left arm in first or her right arm. Suffice to say, as she was pulling on the backpack she developed sudden onset of pain in her lower back radiating towards the left buttock. She had to sit down and stopped work. She took off the backpack. She recalled a co-worker, Mrs Diminovski, came in and asked her what had happened. She told her of her injury. She left early and went home. By that stage, she stated she was starting to get pain radiating down her posterolateral leg towards the posterior heel. The pain was only on the left side.”
Dr Hitchen recorded an uncontroversial history of the applicant’s treatment and reviewed the radiological evidence. He expressed his understanding that the effects of injury were witnessed in a contemporaneous manner by a co-worker “Mrs Diminovski”. He found that the applicant suffered from a disease of gradual onset in the nature of spinal canal stenosis and that employment had been the main contributing factor to the aggravation of symptoms arising from her spinal canal stenosis. He said that specifically, on the balance of probabilities, awkward lifting caused an extension of a degenerative disc herniation towards the left precipitating a left L5 radiculopathy.
Dr Hitchen did not find any aspects of his clinical examination of the applicant which tended to suggest that she was:
(a) voluntarily embellishing and/or exaggerating and manufacturing symptoms;
(b) consciously guarding restrictions of movement;
(c) displaying symptoms and examination findings inconsistent with the claimed medical conditions, and
(d) demonstrating a range of movement during informal observation which was not repeated on clinical examination.
Dr Hitchen expressed the opinion that, on the face of it, the claimed surgery was to treat the effects of the work injury.
The applicant’s evidence as to what happened at 6.00 am on 18 March 2019 and immediately thereafter is summarised at [19]-[20] above.
At [40] of her statement dated 18 June 2019 Nada Dimanoski states:
“After I signed into the book I went to do my work in M building. Ruza works in
M building too, upstairs. I don't know if she worked in M building that day. came back to N building (Admin block), I don't know what time. Ruza was sitting down in the staff room. I said ‘What's wrong’? Ruza said to me she lifted up the vacuum cleaner to put it on her back and she said she felt some pain in her lower back.
I don't know what she said after that. That is what she told me When someone is in pain I don't want to ask anymore questions. I don't know if Ruza had vacuumed the staff room in N block. I had come to the staff room to get some hand towel paper for the staff toilet at the back. That is when I found Ruza sitting down in the staff room. She couldn’t move. She appeared to be in pain. She says she got pain. It was sometime after 6 o’clock.”The applicant has had a long work history and was keen to keep her job. That is why she arranged for her daughter to complete her afternoon shift on 18 March 2019. Nada Dimanoski observed that Ms Tepic appeared to be in pain, and that she could not move.
Dr Hitchen notes Ms Dimanoski’s statement, although he refers to her as “Mrs Diminovski” and to “…point 41” of her statement, rather than [40]. It is not apparent from his report what other material Dr Hitchen had access to when preparing the report.The respondent emphasises that Nada’s Dimanoski’s statement is dated after the date on which the applicant first gave a history of the work injury to Dr Kuzmanovski on 13 May 2019. I am not sure of the reason for this submission. If it is suggested that for this reason,
Ms Dimanoski’s evidence should not be accepted or treated with caution, I reject any such submission. Her evidence is in my view corroborative of what Ms Tepic says at [53] – [59] in her statement dated 22 October 2021 as to what occurred on the morning of 18 March 2019.Similarly, I do not see any reason not to accept the applicant’s evidence in her statement. It appears that the applicant did not initially wish to lodge a workers compensation claim, and did not report her injury as work related until the report to her supervisor, Rakesh Suja, on 15 May 2019[25]. Until that time Ms Tepic had obtained non-WorkCover medical certificates from Dr Kuzmanovski from the date of her first post-injury consultation on 20 March 2019[26], although she says that her first consultation with the doctor was the previous day. There is a lack of reference to the injury sustained on 18 March 2019 being work related in the clinical records of Dr Kuzmanovski until 13 May 2019, in the reports of Dr Rosenberg, and in the reports of Dr Khong until 29 November 2021 when he was asked by the applicant’s solicitor in a letter of that date if the proposed L4/5 anterior lumbar interbody fusion surgery was “reasonable and (emphasis added) necessary”, (the wrong and more onerous test for the need for treatment pursuant to s 60 of the 1987 Act), as a result of the injury sustained on 18 March 2019[27]. Dr Khong said that “Ms Tepic developed lower back pain and left leg pain as a result of working as a cleaner in schools for many years”. That opinion will be referred to hereunder.
[25] See [62]-[63] in statement of Rakesh Suja dated 13 June 2016, Reply p 55.
[26] ARD p 47.
[27] AALD dated 25 January 2022 lodged by the applicant.
The applicant draws attention to what the Court of Appeal said in Davis about clinical notes of treating practitioners. In Nominal Defendant v Clancy[28], Santow JA observed that while clinical notes are the raw data on which diagnosis and opinions are based, it does not always follow that they will be comprehensive. He said at [54]-[55]:
“…clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give to a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
[28] [2007] NSWCA 349.
In my view the medico-legal report of Dr Hitchen dated 27 June 2019 contains a correct diagnosis of the injury sustained by the applicant on 18 March 2019. He records a correct history of the incident, refers to the relevant radiological evidence, and finds no exaggeration, manufacture of symptoms or embellishment on the part of the applicant. He said that the “…awkward lifting caused an extension of a degenerative disc herniation towards the left precipitating a left L5 radiculopathy”. That is a frank injury operating on a degenerative condition in the lumbar spine. I accept Dr Hitchen’s opinion in preference to that of that of
Dr Khong referred to in [81] above as to causation of the applicant’s injury to the lumbar spine. It is consistent with the mechanism of injury described by the applicant, which
I accept. The applicant’s evidence of injury on 18 March 2019 is corroborated by Nada Dimanoski. I do not accept that the development of lower back pain and left leg pain occurred as a result of Ms Tepic working as a cleaner in schools for many years. It occurred as a result of what occurred on 18 March 2019.
Reports of Dr Casikar
In Dr Casikar’s first report dated 11 February 2020[29] he accepted that the applicant sustained a work-related injury following an incident at work on 18 March 2019. He said that Ms Tepic has constitutionally determined degenerative disease, that the L4/5 stenosis is part of the degeneration and that, however, the small disc prolapse aggravated the problem at L4/5. With reference to the first surgery performed by Dr Khong, he said that it was appropriate.
[29] Reply p 8.
In his second report dated 10 March 2021, Dr Casikar diagnosed the applicant as having a failed back syndrome and chronic pain syndrome. His opinion was that the neurological symptoms had recovered since the microdiscectomy, and that present symptoms were probably due to degenerative disease of the spine and significant pain related issues.
Dr Casikar noted that his previous suggestion that Ms Tepic should see a psychiatrist had not happened. He gave a poor prognosis because of failed back syndrome and in addition, (a) significant pain related issue. The doctor said that:“The spinal fusion suggested by Dr Khong is not because of a workplace injury she had earlier. Spinal fusion is mainly because of degenerative disease of the lumbar spine. The prognosis of this condition is actually very poor.”
At the end of the report Dr Casikar said:
“I find it very difficult to support Dr Khong’s decision to do a spinal fusion as she had significant abnormal pain behaviour syndrome. She heeds to see a psychologist as I had [sic, said] in my earlier report. Any surgery at this stage is likely to have a very poor outcome.”
It is apparent from the report that at that stage, Dr Casikar accepted that the applicant had suffered a workplace injury on 18 March 2019. However his finding that the applicant had a significant abnormal pain behaviour syndrome contrasts with the opinion of Dr Hitchen that she was not exaggerating her symptoms, and I do not accept it. As noted above at [71],
Dr Rosenberg also found the applicant “quite genuine”.In his final report dated 13 October 2021[30] Dr Casikar reviews documentation referred to therein, including the report of Dr Hitchen dated 27 June 2019, and of Dr Ian Smith dated 29 October 2019 (not in evidence), and says (as earlier noted at [34]-[35] above):
[30] Reply p 16.
“Thank you for the documentation. In my report I had indicated that Ms Tepic had a
work related injury on 18/03/19. This was based on what she indicated to me. Therefore I assumed that it was accurate. However on consideration of the documents you have now provided there is no mention of any work related injury. Both Dr Khong and Dr Kuzmanovski do not make any reference to a workplace injury.
Therefore based on the documentation you have provided I would like to accept that
there was no recorded incidents of workplace injury. However I cannot verify this fact except to go by what Ms Tepic has indicated and the documents that you have
provided.”
In answer to a question as to whether he believed the worker’s employment was the main contributing factor to any injury “he” [sic] may have sustained, the doctor said:
“With the fresh information I do not believe there is enough evidence to support that
the employment was the main contributing factor. I had indicated in my previous
report that the employment was a contributing factor. Based on the history however I need to change this opinion with the additional information provided by your office.”
This report was used by the respondent in support of its submission that the applicant did not suffer injury per se on 18 March 2019. In view of my findings that she did suffer such an injury, and my acceptance of the reason as to why it was not reported to any of her treating doctors until 13 May 2019, I do not accept Dr Casikar’s change of opinion in respect on causation of the applicant’s back condition.
It is apparent from the reports of Dr Khong to Dr Kuzmanovski dated 22 February 2021[31] and the medico-legal report of Dr Dixon dated 6 July 2021[32] that the applicant continues to suffer from the effects of her injury on 18 March 2019.
[31] ARD p 163
[32] ARD p 32.
Reasonable necessity for surgery
Deputy President Roche at [88] in Diab v NRMA Ltd[33] set out the relevant matters, according to the criteria of reasonableness, that are to be considered in respect treatment proposed pursuant to s 60 of the 1987 Act. These are:
“(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.”
At [89] the Deputy President said that:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
[33] [2014] NSWWCCPD 72.
Dr Rosenberg, Dr Khong, and Dr Dixon are all of the opinion that the surgery proposed by
Dr Khong, namely L4/5 anterior lumbar interbody fusion, is reasonably necessary as a result of the condition from which the applicant now suffers in her lumbar spine. My finding, in accordance with the opinion of Dr Hitchen, is that the condition was caused by the injury she sustained on 18 March 2019. The applicant has exhausted alternative conservative treatment which has not been effective, and Dr Khong has now recommended the surgery. No issue has been raised as to the cost of the treatment, and it is accepted by these doctors as being appropriate and likely to be effective.
SUMMARY
The applicant sustained injury to her lumbar spine on 18 March 2019 arising out of or in the course of her employment with the respondent.
The surgery proposed by Dr Khong, namely L4/5 anterior lumbar interbody fusion, is reasonably necessary as a result of such injury.
The respondent is to pay for the costs of and incidental to the surgery pursuant to s 60 of the 1987 Act.
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