Theoret v Port Macquarie Neighbourhood Centre Inc

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Theoret v Port Macquarie Neighbourhood Centre Inc [2024] NSWPIC 271
APPLICANT:	Patricia Theoret
RESPONDENT:	Port Macquarie Neighbourhood Centre Inc
MEMBER:	Kathryn Camp
DATE OF DECISION:	23 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of sacroiliac joint fusion surgery; causal nexus; absence of report of sacroiliac joint dysfunction for a period of 17 years from date of injury; suggested misdiagnosis and misdescription of complaint of pain in the low back; interval of time; Kooragang Cement Pty Ltd v Bates and Azzopardi v Tasman UEB Industries considered; onus of proof on the balance of probabilities; Nguyen v Cosmopolitan Homes considered and applied. Held – worker has not established that she suffered an injury to her sacroiliac joint; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns whether the applicant worker sustained an injury to her sacroiliac joint, under s 4(a) and s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), and whether proposed sacroiliac joint surgery is reasonably necessary as a result of the injury, under s 60 of the 1987 Act. For the reasons discussed below, the worker’s claim for compensation is unsuccessful.

BACKGROUND

In about March 2001, Patricia Theoret, the applicant worker, commenced work as a disability support worker for the respondent Port Macquarie Neighbourhood Centre Inc.
On 29 June 2001, the applicant was undertaking a manual handing training course. She was required to demonstrate her knowledge of safe lifting and lowering in teams of two people, where they took turns being the support person. Her partner in the training course, while demonstrating safe lifting and lowering techniques, dropped her and she fell to the ground. As a result, the applicant claimed she sustained an injury to several body parts, including the lower back, neck, and sacroiliac joint.
As a result of the 2001 incident, and other work incidents, the applicant has made several claims for compensation. These claims have resulted in many proceedings over the years and determinations made by the former Workers Compensation Commission, including Medical Appeal Panel and Presidential decisions, and a judgment of the NSW Supreme Court – Court of Appeal. The parties have returned again to the Commission, on this occasion, for resolution of a discrete dispute regarding a claim for compensation for proposed surgery to the applicant’s sacroiliac joint as a result of the 2001 incident.
The respondent’s insurer issued several notices and reviews pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998. Of relevance to the present dispute, the respondent denied liability for injury to the applicant’s sacroiliac joint and proposed medical treatment of the sacroiliac joint.
On 26 February 2024, the applicant lodged an Application to Resolve a Dispute in respect of a claim for medical expenses for the costs of proposed treatment in respect of the sacroiliac joint. The proposed treatment is described as a sacroiliac joint fusion and, in the alternative, facet joint denervation by radiofrequency probe.
On 18 March 2024, the respondent lodged a Reply.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a)    whether the applicant sustained an injury to her sacroiliac joint on 29 June 2001 (ss 4(a), 4(b)(ii) and 9A of the 1987 Act);
(b)    whether s 59A of the 1987 Act applies to the applicant to limit compensation payable in respect of proposed medical and related expenses in relation to her sacroiliac joint, and
(c)    whether the proposed treatment and related expenses in relation to the sacroiliac joint is reasonably necessary as a result of the injury (s 60 of the 1987 Act).
While the applicant pleads compensation for two types of procedures on the sacroiliac joint (see [10] below), the applicant’s submissions are only focused on a claim for proposed sacroiliac joint fusion surgery as recommended by Dr Prashanth Rao. Indeed, when asked during the arbitration hearing what orders the Personal Injury Commission (Commission) should make, the applicant submitted that an order for the costs of the sacroiliac joint fusion plus ancillary costs as recommended by Dr Rao should be made.[1] This is likely due to the application of s 59A of the 1987 Act.
[1] Transcript of arbitration proceeding, from 1:31.13.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 26 March 2024, the parties attended a preliminary conference. During the preliminary conference, the Application to Resolve a Dispute was amended, by consent, to plead:
(a) the cost of sacroiliac joint fusion plus ancillary costs, as recommended by Dr Prashanth Rao, and, in the alternative,
(b) the cost of facet joint denervation by radiofrequency probe, as recommended by Dr Vahid Mohabbatti.
On 23 April 2024, the parties attend a conciliation conference and arbitration hearing. Mr Luke Morgan, of counsel, appeared for the applicant instructed by Carroll & O’Dea Lawyers. Ms Lyn Goodman, of counsel, appeared for the respondent instructed by Hicksons Lawyers. The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the hearing.
During the hearing, I directed the parties to refer me to the evidence they sought to rely on in support of their case. I indicated that I would only have regard to the evidence they referred me to in their oral submissions in determining the dispute between the parties. The hearing was recorded and is available to the parties.
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.
On 23 May 2024, following several enquiries, the parties confirmed in writing that the respondent is correctly described as “Port Macquarie Neighbourhood Centre Inc”.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute, dated 26 February 2024, and attached documents, and
(b) Reply to Application to Resolve a Dispute, dated 18 March 2024, and attached documents.

Applicant’s statements

In evidence are two statements made by the applicant, dated 6 November 2020 and
2 March 2023.
The applicant describes several events which resulted in various injuries to several body parts:
(a)    1983 – Motor vehicle accident
The applicant states that she sustained an injury to her neck in a motor vehicle accident in 1983 and was paid compensation.
(b)    22 February 2000 – Back injury
The applicant records that she sustained an injury to her lower back while working for a different employer on 22 February 2000, but did not take any time off work.
(c)    29 June 2001 – Subject incident
See from [19] below.
(d)    23 December 2002 – Head injury
The applicant also records that she sustained a further injury on
23 December 2002, while employed by the respondent, when a client punched her in the face. She states that her head and neck were knocked backwards and she felt immediate pain in her neck, face and left side of her jaw. She was unfit for work for a period of time before returning to suitable duties, despite pain in her lower back, left leg, neck, left arm and face. She underwent two major facial surgical procedures.
(e)    March 2003 – Kitchen incident
The applicant further records that in March 2003 her then manager threw a punch at her “in jest” in the kitchen and that this further exacerbated her neck injury.
(f)    21 May 2004 – Car park incident
The applicant states that sustained an injury in the work car park when she rolled her foot on a stone when walking to her car. She states she felt a “sharp twinge of pain in [her] lower back”. When she returned home she was “unable to lift [her] legs out of the car without using [her] arms due to the pain.” She sought treatment from her general practitioner and chiropractor.[2]
(g)    2004 – Psychological injury
The applicant states that there was an incident involving her employer which caused her distress. This resulted in a psychological injury for which she made a claim for compensation.[3]
(h)    14 December 2019 – Shower incident
The applicant states that sustained an injury after losing her balance in the shower. She hit her head on the shower wall and injured her neck.[4]
[2] Application to Resolve a Dispute (ARD), p 8-9.
[3] ARD, p 9.
[4] ARD, p 10.
The applicant states that her symptoms arising from the motor vehicle accident and back injury had healed or were stable when she commenced work for the respondent in 2001.[5]
[5] ARD, p 9.
In her first statement, the applicant records the subject incident. The applicant states that, on 29 June 2001, she was undertaking a manual handling course as part of her role for the respondent. She states that she was required to demonstrate her knowledge of safe lifting and lowering. She lifted her partner from various positions and lowered her gently to the floor after a simulated collapse. She had successfully completed the task and was then “required to be the human dummy” for her partner.[6] She states that her partner “dropped me onto my tailbone from about 50 cm above the ground”. [7] She states that she felt instant pain. Her back was in a lot of pain and she was unable to lift her legs out of bed without using her arms a few days later.[8]
[6] ARD, p 9.
[7] ARD, p 9.
[8] ARD, p 9.
The applicant states that she attended on her general practitioner, Dr Robin Foot, as soon as she was able to get an appointment on 2 July 2001. She was then referred to another doctor who handled “Workcover cases”.[9]
[9] ARD, p 9.
The applicant contends that since 2001 at times “the pain in [her] back has been very severe and [she has] spasms and pain radiating to both legs, worse in the left leg”. After describing the 2004 incident, the applicant states that “[s]ince this time the pain in my back has been constant”.[10]
[10] ARD, p 9.
The applicant states that over the years she has sought to have her back and neck condition diagnosed, however the insurer denied all requests for treatment.[11] She states that she has had ongoing pain in her back and legs since the subject incident, and has been treated conservatively with chiropractic and acupuncture treatment.[12] She has also tried hydrotherapy, massage, physiotherapy, strength exercises at the gym, pilates, pain management and pharmaceutical treatment including cortisone injections.[13]
[11] ARD, p 9.
[12] ARD, p 9.
[13] ARD, p 9.
The applicant states that she has been provided the following treatment:
(a)    in mid-2018 - C6 and C7 nerve root injection;
(b)   28 May 2019 – anterior cervical decompression and fusion at C5/6 and C6/7;
(c)    30 November 2019 – C5/6 and C6/7 lateral mass fusion and left C5/6 and C6/7 foraminotomy;
(d)   cortisone injections and radiofrequency ablations, and
(e)    on 9 October 2020, trial of a spinal cord stimulator.[14]
[14] ARD, p 9.
The applicant states that treatment for her lumbar spine was put on hold while she underwent neck surgery. The cortisone injections and radiofrequency ablations were initially successful but had no lasting benefit, and she continues to experience pain in her lower back, hip and left leg (and sometimes in her right leg).[15]
[15] ARD, p 9-10.
In her supplementary statement, the applicant states that her doctors were concerned that her periodic back pain complaints in 1999/2001 may have been from a back injury.[16] She also records that she was later diagnosed with endometriosis, which is often initially explored as a back complaint.[17]
[16] ARD, p 10.
[17] ARD, p 10.

Clinical notes

In evidence are several sets of clinical notes.
The applicant attended on her then treating general practitioner, Dr Robyn Foot on
2 July 2001. In the clinical notes for that day, Dr Foot records that the applicant was dropped to the floor by another worker and notes pain “radiating to L hip” with pins and needles.[18] In a NSW Workers Compensation Medical Certificate dated 2 July 2001, Dr Foot records that the applicant was “lowered (? Dropped) to floor – controlled fall and movement by colleague”.[19] Dr Foot also records that the applicant was suffering “[a]cute lower back pain due to probable facet joint inflammation”.[20] The applicant attends on Dr Foot on several further occasions with various complaints, including back pain. However, there are no further clinical notes from
[18] ARD, p 250.
[19] ARD, p 238.
[20] ARD, p 238.
Dr Foot’s practice from 6 May 2005.
There is a set of clinical notes from Five Star Medical Centre from 6 July 2001.[21] In the clinical entry of 6 July 2001, Dr Alterator records that the applicant was at a manual handling course doing controlled drops to the floor when she had a fall. He records that the applicant had pain in her “lumbar region”.[22]
[21] ARD, p 303.
[22] ARD, p 303.
There is a set of clinical notes from Parramatta Medical Centre from 25 May 2017 to
25 January 2021.[23] It records that the applicant attended on general practitioners at this centre on some occasions two per week. However, it is not until 3 September 2018 that it is noted that the applicant was seeing Dr Rao for sacroiliac joint dysfunction as well as disc lesions.[24] There are then several entries where the applicant complains about lower back pain and/or attends for “WC(lumbar)” on 2 October 2018, 18 March 2019, 27 May 2019,
[23] ARD, p 305.
[24] ARD, 312.
[25] ARD, from p 305.
[26] ARD, p 410.
17 July 2019, 27 August 2019, 26 September 2019 and 7 November 2019.[25] There is a further entry on 5 December 2019 that refers to a sacroiliac joint injection.[26]

Dr Marc Russo

In evidence are several reports from Dr Marc Russo, pain specialist. In a report of
[27] ARD, p 83.
[28] ARD, p 83.
[29] ARD, p 84.
3 May 2006, Dr Russo records a history of the 2001 incident. He records that the applicant “fell to the ground landing on her buttocks” and that she developed low back pain which was persistent.[27] He notes that the applicant has lumbar spine and bilateral buttock pain.[28] He also notes that the applicant has been “work intolerant for approximately 12 months”. [29]

Dr Rao

In evidence are a series of reports from Dr Rao, the applicant’s treating neurosurgeon and spine surgeon. These reports refer to treatment for neck, low back and sacroiliac joints.
In a report dated 24 July 2018, Dr Rao records a history of the 2001 and 2002 incidents. In respect of the 2001 incident, Dr Rao records that the applicant sustained an injury while at a training course for back care “she was supposed to lift another co-worker and she felt severe back pain”.[30] Dr Rao notes that the applicant has “back pain and is rated 9/10 on VAS”.[31] On examination, Dr Rao records that there was tenderness in the left sacroiliac joint, noting provocative test for sacroiliac joint was positive.[32] He provided a referral for an MRI of the lumbar spine with SPECT CT to evaluate the source of the applicant’s back pain.[33]
[30] ARD, p 89.
[31] ARD, p 89.
[32] ARD, p 90.
[33] ARD, p 90.
On 30 August 2018, Dr Rao records, amongst other things, that the lumbar spine MRI reveals L3/4 disc prolapse which is abutting the left L3 nerve root. [34] He adds that the SPECT CT scan confirms facet arthropathy at right L3/4 and bilateral L4/5 and L5/S1, and shows uptake in the sacroiliac joints. He concludes that based on this the applicant has “left sacroiliac joint dysfunction causing this pain”.[35]
[34] ARD, p 92.
[35] ARD, p 92.
On 17 July 2019, Dr Rao records that Dr Mohabbatti had performed radiofrequency ablation and the pain had been reasonably controlled in her lower back, but complains of left buttock and hip pain.[36] On examination, Dr Rao records that “this looked to be more sacroiliac joint dysfunction as all the proactive tests were positive on the left side”.[37] Dr Rao recommended a trial of cortisone injections into the left sacroiliac joint.[38]
[36] ARD, p 96.
[37] ARD, p 96.
[38] ARD, p 96.
On 4 September 2019, Dr Rao reports that the left sacroiliac joint injection gave good relief for 24 hours with pain 0-1/10 on VAS but returned to 8/10 on VAS after 10 days.[39] Dr Rao referred the applicant to Dr Mohabbatti for radiofrequency ablation to provide symptomatic relief for the sacroiliac joint pathology.[40]
[39] ARD, p 98.
[40] ARD, p 98.
On 13 December 2019, Dr Rao records that the applicant had trialled many conservative treatments, injections and radiofrequency ablations with short term relief.[41] He notes that he discussed sacroiliac joint fusion with the applicant, and that consent was obtained pending insurer approval.[42]
[41] ARD, p 104.
[42] ARD, p 104.
On 20 December 2019, Dr Rao answers a series of questions raised by the respondent’s insurer. When asked how the workplace injury of 2001 was a substantial contributing factor to the applicant’s current presentation, having regard to a 2016 report of Dr Richard Powell, Dr Rao states that he is “unsure of the exact circumstances of the injury and the scan findings”.[43]
[43] ARD, p 105.
Dr Rao is referred to the report of Dr Powell in 2016 which refers to the 2001 injury to the lumbar spine described as a musculoligamentous injury. In response to a question about what changes have occurred to require the fusion surgery, Dr Rao records that the “symptomatology is not related to Lumbar spine and hence there is no neural compression involved. Issues are related to sacroiliac joint”.[44]
[44] ARD, p 106.
Dr Rao notes that the bone scan was positive in the sacroiliac joints and that the sacroiliac joint injury is related to soft tissue injuries.[45] He also states that the sacroiliac joint “is predominantly covered by strong ligaments and one of the commonest etiology for sacroiliac joint dysfunction is trauma, as [the applicant] has suffered at work”.[46] He adds that the applicant has failed several years of conservative management and “[h]er last option is surgery. Sacroiliac joint fusion has good evidence behind it with good results in randomized control trials”.[47]
[45] ARD, p 107.
[46] ARD, p 107.
[47] ARD, p 107.
On 20 February 2020, Dr Rao refers the applicant for a repeat injection of the sacroiliac joint injection.[48]
[48] ARD, p 115.
On 31 August 2020, Dr Rao provides a further report. He records a history of the 2001 incident where the applicant “was dropped by her partner in the course onto the tail bone and had immediate back pain that was initially managed” conservatively.[49] Dr Rao records that while her symptomatology continued in the “lower back it was never managed or investigated much”.[50] Dr Rao refers to the 2006 MRI scans of the lumbar spine, which revealed L3/4 and L4/5 minor disc bulges with no impingement of the nerves.[51] Dr Rao notes the 2018 MRI revealed similar changes in the lumbar spine to the 2006 MRI but with “a small component of the disc entering the left L3 foramen but no compression”.[52] He also notes that the bone scan “revealed mild arthritic changes in the lower lumbar facet joints and also in sacroiliac joint”.[53]
[49] ARD, p 121.
[50] ARD, p 121.
[51] ARD, p 121.
[52] ARD, p 121.
[53] ARD, p 121.
Dr Rao records that the applicant’s symptoms were “quite severe at the time and was not investigated”.[54] He states that the symptomatology of the sacroiliac joint problem has been confirmed by Dr Mohabbatti and the only thing that improved the applicant’s symptoms were cortisone injections and radiofrequency ablation of the lower lumbar spine.[55] He states:
“As such her changes in the lumbar spine are not as glaring as to cause of symptomatology apart from the sacroiliac joint issues. I do feel that the sacroiliac joint dysfunction would have been started from the injury as agreed [by the] Independent Medical Examiner. The lumbar spine has never been her major issue as demonstrated by the multiple scans as well. As she has failed conservative management and management including radiofrequency ablation for her sacroiliac joint the last resort would be sacroiliac joint fusion and I do think this is in relation to her injury in 2001. She has not had any further injury to the sacroiliac joint or the lumbar spine after this and prior to this last issue with the back pain was in 1980 so about 20 years ago.”[56]
[54] ARD, p 122.
[55] ARD, p 122.
[56] ARD, p 122.

On 3 September 2020, Dr Rao refers to the MRI and CT of the lumbar spine and states this “does confirm the issues of sacroiliac joint on the left” and the bone scan shows sacroiliac joint uptake.[57]
[57] ARD, p 124.
On 11 September 2020, Dr Rao states that he still believes that the sacroiliac joint fusion would be the best chance of pain improvement.[58] He also notes that the bone scan did not show any facetal or discovertebral uptake.[59]
[58] ARD, p 126.
[59] ARD, p 126.
On 11 January 2021, Dr Rao responds to a series of questions raised by the applicant’s solicitor. He is asked to comment on a history of several injuries (dated 21 May 2004; February 2000; 28 June 2001; 18 March 2003; 23 December 2002; 1983) and the significance of these injuries and their relevance to the applicant’s sacroiliac joint dysfunction. In response, Dr Rao records that it is “quite common to attribute back injury to all injuries including lower back and sacroiliac injuries as their presentations can be similar. All of the above injuries could have caused or exacerbated the sacroiliac joint dysfunction”.[60] He provides an addendum on 21 July 2021, and notes that:
“However the fall onto the buttock while doing a back course is likely the main reason for the sacroiliac joint injury needing current recommendation for fusion as the mechanism of injury is more likely to have injured the sacroiliac joint.”[61]
[60] ARD, p 129.
[61] ARD, p 130.
Dr Rao states that the sacroiliac joint is not a typical lower limb joint where arthritis is easily seen on imaging and diagnosis is made on clinical examination (Provocative SIJ tests) and response to sacroiliac joint injection.[62] Dr Rao adds that the reliance on imaging is “not useful and in fact detrimental as these are wrongly attributed to functional issues”.[63] Dr Rao also states that the symptomatology in the lumbar spine and sacroiliac joint are very similar but examination is different.[64] He further adds that radiology helps to “rule out lumbar spine pathology”.[65]
[62] ARD, p 130.
[63] ARD, p 130.
[64] ARD, p 130.
[65] ARD, p 130.
When asked to consider Dr Bentivoglio’s opinion on causation, Dr Rao states that:
“I agree with Dr Bentivoglio that [the applicant] does not have much of degenerative lumbar disease and that is why I feel the sacroiliac joint issues are the main cause for her back pain even before when she had the injuries.”[66]
[66] ARD, p 131.
When asked about the relevance of any lumbar spine changes and the relevance to the left sacroiliac joint injury, Dr Rao said: “[s[acroiliac joint issues have been the cause for her back pain since when the back issues have been predominant. One of the prominent causes for sacroiliac joint issues is trauma.”[67]
[67] ARD, p 131.
Dr Rao states that he expects the applicant will have a 70% improvement of left leg pain following sacroiliac fusion surgery.[68]
[68] ARD, p 132.
In a report dated 5 May 2021, Dr Rao records that on the “balance of probabilities the initial injury on 29 June 2001 is the likely cause of [the applicant’s] injury needing sacroiliac joint fusion surgery. Add (21/07/21): The reason being the nature of the injury which is fall onto the buttock”.[69]
[69] ARD, p 135.
In a report dated 23 May 2023, Dr Rao refers to a review conducted by Dr Diwan. He states that he agrees with Dr Diwan that it is sometimes difficult with both L5/S1 degeneration and sacroiliac joint as they are next to each other and one can lead on to another.[70] He notes that these symptoms have been present since the injury in 2001.[71] He concludes that he believes the “sacroiliac joint dysfunction is more the probable issue than the L5/S1”.[72]
[70] ARD, 189.
[71] ARD, 189.
[72] ARD, 189.

Dr Vahid Mohabbatti

In evidence are several reports from Dr Mohabbatti, specialist in pain medicine and palliative care. In a report dated 13 December 2018, Dr Mohabbatti records a history of injuries in 2001 and 2002. In respect of the 2001 incident, Dr Mohabbatti records that the applicant sustained lower back injuries when she landed on her back during a course on back care training.[73]
[73] ARD, p 207.
Dr Mohabbatti refers to several scans. In respect of the lumbar spine MRI and bone scan dated 6 August 2018, Dr Mohabbatti notes that the applicant has minor disc bulge with left lateral component at L3/4 level abutting the left L3 nerve root laterally.[74] He also notes that there may be irritation of the left L3 nerve root but no canal stenosis.[75] He also records that the bone scan performed showed mild arthritic changes at right L3/4, L4/5 and L5/S1 facet joints and left at L4/L5 and L5/S1.[76] He recommends a pain management programme.[77]
[74] ARD, p 209.
[75] ARD, p 209.
[76] ARD, p 209.
[77] ARD, p 110.

Associate Professor Kevin Seex

In evidence is a report from A/Prof Kevin Seex, neurosurgeon qualified by the applicant, dated 29 November 2022. A/Prof Seex states that he reviewed the history of the multiple events regarding causation of the applicant’s sacroiliac joint problems.[78] The A/Prof records that these problems “clearly seem to stem from 2001 when she had this fall and were not investigated or perhaps diagnosed at that stage and have continued to be an ongoing problem”.[79] He states that both are reasonably and are necessary at this point in time, but his preference would be fusion surgery.[80]
[78] ARD, p 226.
[79] ARD, p 226.
[80] ARD, p 226.

Dr Ashish Diwan

In evidence are several reports from Dr Ashish Diwan, spine and scoliosis surgeon. The applicant’s treating general practitioner Dr Lam referred the applicant to Dr Diwan for a second medical opinion.
In a report dated 1 March 2023, Dr Diwan states that the radiofrequency ablation performed in the sacroiliac region held effect for a day or two.[81] Dr Diwan refers to the MRI and CT scan of the lumbar spine which includes the sacroiliac region “does not show any pathology of the sacroiliac joints or of the spinal discs of surgical significance”.[82] He suggests that the applicant get a standing lumbar X-ray and X-rays of her sacroiliac and hip region, and requested actual films of the technetium bone scan to study them better.[83]
[81] ARD, 227.
[82] ARD, 227.
[83] ARD, 227.
In a report dated 22 March 2023, Dr Diwan records a history of a recommendation for sacroiliac joint fusion on a background history of numerous years of being diagnosed as having lumbar disc issues.[84] He notes that he has at hand the past scans and most recent from 13 March 2023 (which he sought). He refers to the 2018 MRI scan and the most recent scans, which shows significant discovertebral arthritis at L5-S1 which explain the spinal deformity and symptoms the applicant has in the back and leg.[85] He states:
“As the L5-S1 is very close to the sacroiliac joint it is not easy to differentiate them in fact it is not difficult to confuse one pathology with the other.
At this stage the evidence points to her L5-S1 disc being the major source along with the most recent MRI scan showing a small bulge at L3-4. In balance it would be reasonable to state that her ongoing symptoms are as a consequence of her disc pathology between L3 and S1.
…
The transient relief she had with the sacroiliac radiofrequency in 2019 could possibly be explained with an overarching disc involvement at that stage.
…
I have not made any definite of treatment recommendation because that does not appear to be the purpose of this consult, it was more to get clarity as to what would possibly be the source of pain.”[86]
[84] ARD, 229.
[85] ARD, 229.
[86] ARD, p 229.
Dr Diwan notes that further treatment may be in the form of ongoing physical therapy, more injections, possible pharmacotherapy and later the applicant may require spinal surgery.[87]
[87] ARD, p 229.

Medical Assessment Certificate – Dr Murray Hyde-Page

In evidence, is a Medical Assessment Certificate (MAC) of Dr Hyde-Page dated
18 June 2008. The MAC arose from separate proceedings in the former Workers Compensation Commission, but in relation to the 2001, 2002 and 2004 incidents. Dr Hyde-Page conducted an assessment under the Table of Disabilities of the applicant’s back, left leg at or above the knee and right leg at or above the knee in respect of the 29 June 2001 incident; the cervical spine, ear, nose, throat and related structures in respect of the
[88] ARD, p 523.
23 December 2002 incident; and lumbar spine in respect of the 21 May 2004 incident.[88]
Dr Hyde-Page records a history of the 2001 incident, that the applicant suffered an injury to her lower back when she was being used for a demonstration on how to lift to protect your back.[89] He records that the other person did not catch her and she landed “heavily on her buttocks when she hit the ground”.[90] He also records that the applicant developed low back pain, which became quite severe shooting into her legs that evening.[91] The pain in her back continued down to her legs, worse on the left than the right, and no treatment really helped.[92]
[89] ARD, p 524.
[90] ARD, p 524.
[91] ARD, p 524.
[92] ARD, p 524.
Dr Hyde-Page records the applicant’s present symptoms in the low back, which “overall it is not too severe” and that the “low back [pain] can shoot down into her legs, mainly the left leg”.[93]
[93] ARD, p 525.
Dr Hyde-Page refers to a report of Dr Michael Prowse, rheumatologist, dated June 1996, who had seen the applicant for chronic neck and low back conditions and who noted a 13 year history of that pain.[94] Dr Hyde-Page records that Dr Prowse recorded that the applicant had extensive conservative treatment to no avail for these chronic conditions.[95]
[94] ARD, p 525.
[95] ARD, p 525.
Dr Hyde-Page records his findings on examination:
“In summary, today’s examination was completely normal except when this lady went from a fully flexed position touching her feet, coming back to the extended position. There was no evidence of any radiculopathy in her lower and upper limbs and she had full range of lumbar and cervical spine movement with no muscle guarding.”[96]
[96] ARD, p 526.
Dr Hyde-Page also records details of special investigations, including a CT scan of the lumbar spine in December 2005 showing disc bulge at L4/5 and MRI scan of May 2006 showing mild degenerative changes and disc bulge again at L4/5.[97]
[97] ARD, p 526.
In summary, Dr Hyde-Page states that her injuries to her lower back in 2001 and 2004 and injury to her neck in 2002 must be viewed in the context of a “significant injury to her neck and lower back in 1983 where she developed chronic neck and low back conditions with ongoing treatment over a period of many years and this has been highlighted by the report of Dr Prowse in June 1996”.[98] Dr Hyde-Page then states that the applicant now presents with ongoing low symptoms where there has been improvement in the last few years, but no evidence of radiculopathy but some referred pain into her limbs.[99] He also notes some degenerative changes in the lumbar spine. He assessed the 2001 back injury at 6% permanent impairment, having made a 2/5 deduction for pre-existing conditions.[100]
[98] ARD, p 526.
[99] ARD, p 526.
[100] ARD, p 531.

Dr Bodel

In evidence are two reports from Dr Bodel, orthopaedic surgeon qualified by the applicant, dated 17 March 2020 and 9 December 2021.
Dr Bodel records a history of the 2001 and 2002 incidents. In respect of the 2001 incident, Dr Bodel records a history that the applicant was stimulating catching of a person who was falling. He then states “[w]hen it was her turn to be caught, the person doing the catching did not catch her and she dropped to the floor very heavily. She had a serious injury to the lower part of the back.”[101]
[101] ARD, p 68.
Dr Bodel refers to a history of a minor backache in the late 1980s which resolved. He notes there was no disc pathology, signs of fractures or degenerative change in the films dated 23 September 1988.[102]
[102] ARD, p 69.
Dr Bodel refers to the two neck surgeries performed by Dr Rao. He also notes that the applicant still has lower back pain and Dr Rao recommended a left sacroiliac joint fusion.[103] He adds that the applicant had a radiofrequency neurotomy in the back and a separate radiofrequency neurotomy and block injection in the sacroiliac joint.[104] He states that the “back was very helpful, but the sacroiliac joint has not helped”.[105]
[103] ARD, p 69.
[104] ARD, p 69.
[105] ARD, p 69.
Dr Bodel records the applicant’s current complaints, including in the lower part of her back where she has “central back pain and left sacroiliac joint pain”.[106] On examination, Dr Bodel records tenderness over the sacroiliac joint on the left side and guarding in that area.[107]
[106] ARD, p 70.
[107] ARD, p 71.
Dr Bodel records that the 2001 injury caused the disruption of her lower lumbar discs and that the respondent is a “substantial contributing factor to the ongoing complaints in the lower part of the back”.[108] He adds that the “injury to the lower part of the back is a frank injury caused by that specific event that occurred on 29 June 2001”.[109] He further adds that there has been “very little in the way of progression of the disease process” and “unlikely therefore that it is a disease process of gradual onset which has been aggravated, exacerbated, accelerated and deteriorated in this circumstance”.[110]
[108] ARD, p 72.
[109] ARD, p 72.
[110] ARD, p 72.
Dr Bodel adds that “the sacroiliac joint on the left hand side does appear to be the pain generator as a result of the injury that occurred on 29 June 2001. The proposed sacroiliac join fusion is to be considered”.[111] He further adds that the fusion surgery is “reasonably necessary” because of the considerable pain in that area.[112]
[111] ARD, p 73.
[112] ARD, p 73.
In his second report, Dr Bodel refers to the applicant’s bone scan which confirms clinical evidence of sacroiliac joint arthritis. Dr Bodel records that “there is probably a causal link between the injury that occurred on 29 June 2001 and the sacroiliac joint pathology caused by injury at that time. The reports from Dr Rao confirm that causal link”.[113] Dr Bodel states that the applicant has explored all appropriate treatment options, including ablations of the sacroiliac joint with some temporary benefit but no lasting improvement.[114] Dr Bodel concludes that a sacroiliac joint fusion is reasonably necessary for the applicant’s ongoing management of that injury caused by the accident on 29 June 2001.[115]
[113] ARD, p 75.
[114] ARD, p 75.
[115] ARD, p 75.

Dr Peter Bentivoglio

In evidence are several reports from Dr Peter Bentivoglio, neurosurgeon qualified by the respondent, dated 16 March 2020, 1 June 2021, 19 October 2021 and 31 January 2022.
In the report of 16 March 2020, Dr Bentivoglio records a history that the applicant had suffered an injury to her lumbar spine on 29 June 2001 when she was dropped by her partner and landed on her back while doing an exercise in a group.[116] He also notes a history of low back pain from the 1990s.[117] He records that the applicant presents mainly with a lumbar spine problem, which was made worse by the 2001 injury.[118] Dr Bentivoglio notes that the applicant has had “multiple reviews up until now and they all said it was just related to disc changes in the lumbar spine. No mention of the sacroiliac joints was made”.[119]
[116] Reply, p 27.
[117] Reply, p 27.
[118] Reply, p 27.
[119] Reply, p 27.
Dr Bentivoglio records the applicant’s diagnosis. He states that the applicant “may well have sacroiliac joint dysfunction on the left side, but she has not had any recent investigations for this” in the form of an MRI and CT scan.[120] He diagnosed the applicant with minor degenerative disease in her lumbar spine which is causing axial back pain.[121] If the applicant has some sacroiliac joint dysfunction, Dr Bentivoglio said that he did not believe that it was related to the 2001 incident because “she has been assessed by multiple doctors between that injury and now before any mention was made of the sacroiliac joint dysfunction”.[122] He adds that he does not believe that work was the main contributing factor to the diagnosis of left sacroiliac joint dysfunction.[123] He further adds that she has some pre-existing degenerative disease in her lumbar spine which was “flared up by the 2001 injury but I believe it is now not the cause of her low back pain from the injury in 2001”.[124] That is because of only minor degenerative changes in the lumbar spine and no significant neurological compression or compromise.[125]
[120] Reply, p 28.
[121] Reply, p 28.
[122] Reply, p 29.
[123] Reply, p 29.
[124] Reply, p 29.
[125] Reply, p 29.
Dr Bentivoglio states that the employment related injury in 2001 has resolved but that the applicant sill has some persistent constitutional degenerative changes in her lumbar spine.[126]
[126] Reply, p 29.
Dr Bentivoglio finds that the request for sacroiliac joint fusion is probably reasonable, but not reasonably necessary or related to the 2001 incident.[127]
[127] Reply, p 29.
In a report dated 1 June 2021, Dr Bentivoglio noted that the applicant had undertaken radiofrequency neurotomy of the sacroiliac joint, which was of some benefit.[128] Dr Bentivoglio states that the applicant’s problems are low back pain secondary to multilevel degenerative disease since the 2001 injury, and a diagnosis of sacroiliac joint dysfunction has also been made.[129]
[128] ARD, p 78.
[129] ARD, p 78.
In a report dated 19 October 2021, Dr Bentivoglio records an opinion on causation. He states that on the balance of probabilities the applicant’s back symptoms are not related to the sacroiliac joint degenerative changes.[130] He states that there has been “20 years for the degenerative changes to develop” and that these changes are degenerative and constitutional in nature.[131] He adds that he does not believe that the “pain is definitely coming from the sacroiliac joint, even though [the applicant] had some benefit from a radiofrequency ablation”.[132] He suggests that the applicant would benefit from a second radiofrequency ablation to see if it affords her any further benefit.[133] He concludes that he is “not convinced that the injury in 2001 is the cause of either the sacroiliac joint degenerative change or the degenerative changes seen in the lumbar spine, as shown on both CT scan and MRI scan”.[134]
[130] Reply, p 40.
[131] Reply, p 40.
[132] Reply, p 40.
[133] Reply, p 40.
[134] Reply, p 40.
In a further report, dated 31 January 2022, Dr Bentivoglio records an opinion on Dr Bodel’s opinion. Dr Bentivoglio states that there are degenerative changes in the lumbar spine and sacroiliac joint, which are degenerative and constitutional in nature.[135] Dr Bentivoglio adds that he does not “blame the injury in 2001 as the cause of the degenerative disease in her lumbar spine” or that the degenerative disease in the sacroiliac joint is related to the 2001 injury some 20 years ago.[136] He further adds that many other factors could have contributed to these degenerative changes.[137] In respect of treatment, he recommends radiofrequency ablation again and, if that does not help, then surgical fusion of the sacroiliac joints is probably reasonable.[138]
[135] Reply, p 41.
[136] Reply, p 41.
[137] Reply, p 41.
[138] Reply, p 42.

Radiological evidence

In evidence are several reports of scans.
In a CT report of the lumbar spine, dated 20 December 2005, it is recorded that no compressive lesions were seen at L1/2, L2/3 and L3/4 levels.
In an MRI report of the lumbar spine, dated 6 August 2018, it is recorded a minor disc bulge with a left lateral component at the L3/4 level is abutting the left L3 root laterally.[139] It also records that on the SPECT images of the lumbosacral spine there is minimal arthritic change evidence in the sacroiliac joints.[140]
[139] ARD, p 145.
[140] ARD, p 146.
In an MRI and CT report of the lumbar spine, dated 28 August 2020, it is recorded that there is multilevel mild disc disease involving L3/4, L4/5 and L5/S1 levels.[141] It is also recorded that this is causing mild left L3/4 and L4/5 foraminal stenosis without definite contact of the nerves.[142]
[141] ARD, p 278.
[142] ARD, p 279.

In a bone scan report, dated 7 September 2020, the clinical notes record “SI joint issues”.[143] However, it concludes “[n]o cause for the patient’s presentation is seen. In particular, there is no abnormal uptake at the sacroiliac joints or within the lumbar facet joints”.[144]
[143] ARD, p 280.
[144] ARD, p 280.
In a lumbar spine X-ray report, dated 7 September 2020, it is recorded that there is “degenerative changes noted at the SI joints”.[145]
[145] ARD, p 281.

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant asserts that it is accepted that she injured her back, and liability was admitted. The applicant seeks surgery relative to the costs associated with the “procedure and a denervation by way of radiofrequency ablation” as recommended by Dr Mohabbatti and, in the alternative, sacroiliac joint fusion recommended by Dr Rao. The applicant then submits that weekly payments of compensation have “now come to an end [and] in the absence of an assessment of whole person impairment, at greater than 20% WPI, member, the surgery being proposed is based on the treatment provided by Dr Rao”.
The applicant refers to the medical and statement evidence in support of her case, which has been summarised above. The applicant submits that Dr Rao provides an opinion on pathology, the need for treatment and appropriateness of treatment on a background of all the potential treatments available.
The applicant asserts that I should prefer the opinions of Dr Bodel and Dr Rao on causation and need for treatment. Dr Bentivoglio agrees with the need for treatment. The only contrary opinion on causation is Dr Bentivoglio.
The applicant submits that Dr Bentivoglio makes a board denial of any relationship between the left sacroiliac joint dysfunction and workplace injury. He finds that it is all due to a pre-existing degenerative disease. He does not have regard to the unremitting issues with the lumbar spine from 2001, noting that the applicant suffered that injury at a relatively young age and has struggled with the condition since that time and the pain generator. There are degenerative changes evident in the left sacroiliac joint, which Dr Bentivoglio says needs to be addressed initially by ablation. The doctor dismisses the condition out of hand as not being work related on the basis of the passage of time but does not address why nothing has changed in 20 years.
In the absence of any particular change in the applicant’s condition, the applicant submits that, the Commission should be satisfied that the pathology identified by Dr Rao and Dr Bodel in the sacroiliac joint was caused by the applicant’s fall on her buttocks in 2001. This is evidenced by the unremitting pain from that time.
The applicant contends that the fusion surgery will require an implantation of surgical fixating devices. This, the applicant submits, falls within the definition of an artificial aid under s 59A as discussed in the decision in Pacific National Pty Ltd v Baldacchino.[146]
[146] [2018] NSWCA 281 (Baldacchino).
The applicant asserts that all the medical evidence supports the need for fusion surgery, except Dr Bentivoglio who says it is not unreasonable but suggests another course of treatment first. The applicant relies on the evidence of Dr Rao, who has had the control and conduct of the applicant for six years, including a series of ablations and injections, and recommends fusion surgery.

Respondent’s submissions

The respondent notes that Dr Rao recommends surgery back in 2019 and saw the applicant on one or more occasions in 2020. However, four years later, Dr Rao still presses the claim for surgery. Dr Rao has not seen the applicant for some considerable period of time and this is an issue regarding whether the treatment is still necessary.
The respondent submits that the applicant was assessed under the Table of Disabilities in 2008, by Dr Hyde Page. Ten years later she was seen by Dr Rao, and there is a “dearth of evidence” as to the applicant’s condition during that time.
The respondent refers to Dr Diwan’s evidence. Relying on that evidence, the respondent submits, it would be reasonable to state that the applicant’s ongoing symptoms are as a consequence of her pathology between L3 and S1. The doctor notes the transient relief the applicant received from the sacroiliac radiofrequency ablation. The source of the pain is very clear not the sacroiliac joint but the L5/S1 joint.
The respondent submits that the applicant did not injure her sacroiliac joint on 29 June 2001. The respondent refers to the contemporaneous evidence of the 2001 incident and complaints of pain. The respondent asserts that by not producing the applicant’s clinical notes beyond 2005 that it is “not conducive to your finding” or the applicant’s submission of unremitting issue of the sacroiliac joint pain. There is no evidence of unremitting pain.
The respondent refers to the assessment of Dr Hyde-Page on 18 June 2008, where he comments on the 2001 injury and the applicant’s symptoms. Having regard to that assessment, the respondent submits that, on the balance of probabilities, the Commission cannot be satisfied that any condition that the applicant might be suffering in 2018, 2019, 2020 and even today has any connection with her employment injury.
The respondent then refers the evidence of Dr Russo and Dr Rao. The respondent notes that Dr Rao records the applicant’s back pain as rated 8 out of 10 and pain on the left side leg pain, which is different to Dr Hyde-Page which was right sided leg pain. Dr Rao then records that there is tenderness in the left sacroiliac joint, and this is the first time anyone has noted this since the applicant’s injury. Noting the applicant has a history of chronic low back pain pre-dating the injury, when asked by the insurer how the workplace injury of 2001 was a substantial contributing factor to the current presentation, the doctor responds that he is “unsure of the exact circumstances”.
The respondent submits that it has been 19 years since the symptoms have been ongoing, it has not been 19 years of ongoing or unremitting symptoms. There are minimal complaints recorded in Dr Hyde-Page’s report which examined the lumbar spine under the Table of Disabilities.
The respondent adds that Dr Rao says the symptomatology is not related to the lumbar spine and there is no neural compression of the lumbar spine but the issue is related to the sacroiliac joint. However, the respondent submits that, Dr Rao does not explain how and why the issues are related to the sacroiliac joint. He does not go through the medical evidence from the general practitioner and others to see the development of symptoms. It is not sufficient to say that the applicant did not have another injury, it is for the applicant to prove the ongoing symptoms and that they are related. The applicant has to satisfy on the balance of probabilities that there is a continuity of symptoms, but there is not because there is nothing between 2008 and 2018. There is an unexplained gap of 10 years that needs to be addressed before it can be found that there was a continuity of symptoms in the lumbosacral area as opposed to the lumbar spine.
The respondent refers to Dr Rao’s other reports. On 20 February 2020, Dr Rao records that the applicant had a great result from the sacroiliac joint injection. However, he does not deal with causation. On 31 August 2020, Dr Rao, records that the applicant was dropped onto her tailbone in the course of the manual handling course but there is no evidence previously that she was dropped on her tailbone. The evidence is that she was dropped onto her back. The doctor adds that the applicant’s symptoms were quite severe but were not investigated well, which is contrary to the report of Dr Hyde-Page who records a normal examination.
The respondent relies on the reports of Dr Diwan and Dr Bentivoglio to argue that fusion surgery is not reasonably necessary as a result of the 2001 injury. There are a number of conservative measures that can be undergone before surgery.
The respondent submits that Dr Bodel accepts the applicant had an injury to her sacroiliac joint without explaining how it might be so that she did not complaint about problems in the sacroiliac region as opposed to the lumbar spine. He refers to the sacroiliac joint as a pain generator but does not explain how he comes to that conclusion and does not explain the lengthy gap.
The respondent then refers to A/Prof Seex’s report of 29 November 2022, who records symptoms in the sacroiliac joint which clearly stemmed from 2001. However, the respondent submits, he does not look at the fact that the applicant had preexisting problems or that the examination with Dr Hyde Page in 2008 was normal.
The respondent concedes that Dr Bentivoglio finds the applicant has sacroiliac joint issues but finds it is not related to her injury in 2001. He considers the pain is degenerative and constitutional in nature, and not related to the work injury to her back in 2001. Dr Bentivoglio considers conservative treatment in the nature of radio frequency ablation, and, if it doesn’t help, then fusion surgery may be reasonable.
The respondent adds that the applicant cannot establish on the balance of probabilities that she sustained an injury to her sacroiliac joint and secondly that surgery is reasonably necessary. The respondent refers to s 59A(6) of the 1987 Act. If the applicant were to fall within any of the exceptions under s 59A(6) “it would have to be artificial aids” rather than artificial member. There is no artificial aid at this stage, it would only be after the applicant has the surgical treatment that she would fall within the category of artificial aid. The applicant cites the decisions in Baldacchino and Flying Solo Properties Pty Ltd t/as Artee Sings v Collet.[147]
[147] [2015] NSWWCCPD 14.
Further, the respondent submits that, s 59A of the 1987 Act would only apply so long as the applicant was entitled to weekly compensation. The applicant has exhausted her entitlement to any weekly compensation rights and it would only be if she exceeded the 20% threshold for the purposes of s 39 that any further weekly compensation would be payable to the applicant.

Applicant’s submissions in reply

The applicant refers to evidence of Dr Rao and Dr Diwan. The applicant asserts that the evidence of Dr Rao should be accepted.
In respect of the application of s 59A(6) of the 1987 Act, the applicant refers to the journal articles in evidence. That material refers to the fusion procedure and identifies the nature of the aid or artificial aid which is to be implanted. There is a description of the device which falls within the meaning of artificial aid under s 59A(6). The applicant submits that she relies on the decision of Herborn v Spotless Services Australia Limited,[148] where Deputy President Wood found that lumbar decompression and spinal fusion constituted an artificial aid.
[148] [2020] NSWWCCPD 24.
The applicant adds that none of the respondent’s doctors engage with the observations of Dr Rao with respect to causation. There has also been no subsequent injury to explain the pathology demonstrated.

FINDINGS AND REASONS

The applicant claims that she suffered an injury to her left sacroiliac joint at the time of the 2001 incident, and that proposed left sacroiliac joint fusion surgery is reasonably necessary as a result of that injury. The applicant’s case turns largely on an acceptance that the applicant was misdiagnosed and mistreated for low back complaints for many years, when it should have been for left sacroiliac joint dysfunction as a result of the 2001 injury. The case also turns on whether the applicant had a lumbar spine injury and also a sacroiliac joint injury as a result of the 2001 incident, although the applicant’s submissions do not directly address this point.
It is accepted that the applicant suffered a “back injury” as a result of the 2001 incident. That injury was the subject of separate proceedings in the former Workers Compensation Commission, in which the applicant was assessed by Dr Hyde-Page at 6% permanent impairment of the back (lower back), with 2/5 deduction for a pre-existing injury in 1983.
It is also accepted that the applicant has left sacroiliac joint dysfunction, and that this condition requires some form of treatment. However, the respondent disputes there is a causal nexus between the 2001 incident and the sacroiliac joint dysfunction and need for fusion surgery.
It was not until several years after the 2001 incident that it became apparent that the applicant suffered from sacroiliac joint dysfunction. In about July 2018 the applicant first began to see Dr Rao, whom she was referred to for treatment in relation to multiple injuries, and that he found tenderness in the left sacroiliac joint.
It is well accepted that the applicant bears the onus of proof, to establish her case under ss 4 and 60 of the 1987 Act, on the balance of probabilities.[149] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[150] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[151]
[149] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[150] [2008] NSWCA 246.
[151] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)).
Whether the applicant sustained an injury under s 4 of the 1987 Act to her left sacroiliac joint as a result of the 2001 incident is a question of fact to be determined following a careful analysis of the evidence and a commonsense evaluation of the causal chain.[152] It turns on a close analysis of the evidence regarding complaints of low back pain, investigations as to the source of the pain, related treatment, and opinions on causation of the left sacroiliac joint dysfunction.
[152] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
The applicant seeks to establish that she had “unremitting” complaints of low back pain and that the symptomatology in the low back is not related to the lumbar spine but the sacroiliac joint. The applicant relies on the evidence of Dr Rao, A/Prof Seex and Dr Bodel. For the reasons stated below, I do not accept that submission and prefer the evidence of Dr Diwan.

Unremitting complaints of low back pain

I do not accept the applicant’s submissions that her complaints of the low back from 2001 were unremitting. The applicant has not established that she experienced ongoing low back pain or lumbosacral pain from 2001 to the date of diagnosis of sacroiliac joint dysfunction on or about 2018. While the applicant states in her November 2020 statement that she has had back issues over many years, there is a significant gap in the treating medical evidence and lay evidence regarding the applicant’s complaints of pain and treatment in respect of the lumber spine from around May 2006 until around 2018 which is unexplained. The parties did not take me to any evidence during that period, apart from the Medical Assessment Certificate of Dr Hyde-Page in 2008 which records symptoms in the low back but that “overall it is not too severe”. While I accept there is evidence from around 2018 which records complaint of lower back pain, on the available evidence, I am unable to draw an inference that the applicant experienced ongoing symptoms in her low back from 2001.[153]
[153] Flounders v Millar [2007] NSWCA 238, [35] (per Ipp JA).

Misdescription of low back pain complaints

Even if I am wrong and the applicant had ongoing low back pain, I do not accept that that low back pain was necessarily misdescribed. Firstly, it is accepted that the applicant suffered an acute lumbar spine injury as a result of the 2001 incident. The applicant was assessed in 2008 by Dr Hyde-Page, an independent Medical Assessor appointed by the former Workers Compensation Commission, to have 6% permanent impairment in respect of the back as a result of the 2001 incident. Secondly, Dr Hyde-Page recorded that the applicant presented with ongoing low back symptoms which were improving. Thirdly, in 2018 Dr Rao records a history of the 2001 incident and that the applicant has back pain which is rated “9/10 on VAS”. Fourthly, there is radiological evidence which identifies pathology in the lumbar spine. The 2006 MRI scan of the lumbar spine showed L3/4 and L4/5 minor disc bulges but no impingement of the nerves. The 2018 MRI of the lumbar spine showed disc bulges at L3/4 and L4/5, with left lateral component at L3/4 level abutting the left L3 nerve root laterally. The 2018 bone scan also noted mild arthritic changes at right L3/4, L4/5 and L5/S1 facet joints and left at L4/L5 and L5/S1. Fifthly, it is not disputed that the applicant has had various low back issues over the years for which she sought treatment. Sixthly, Dr Bodel records that the 2001 injury caused a disruption of the applicant’s lower back and notes central back pain on examination in 2020. Lastly, Dr Diwan in 2023 records that the applicant’s pain is a result of her lumbar spine pathology between L3 and S1. The evidence supports the applicant’s complaint of low back pain related to the lumbar spine.

Expert evidence

It is only around late 2018 that Dr Rao first considered the applicant’s pain was caused by her sacroiliac joint dysfunction. In his report of 20 December 2019, Dr Rao provides a comment on causation. He states that he is unsure of the exact circumstances of the 2001 work injury and the scan findings. Dr Rao records that the “symptomatology is not related to Lumbar spine and hence there is no neural compression involved. Issues are related to sacroiliac joint”.[154] He also states that the applicant had failed conservative management and the “commonest etiology for sacroiliac joint dysfunction is trauma, as [the applicant] has suffered at work”. However, as the respondent submits, Dr Rao does not adequately explain how and why the “issues are related to the sacroiliac joint”. Notwithstanding, no definite neural compression, Dr Rao does not explain why the applicant’s pathology in the lumbar spine would not cause the low back pain she was experiencing. Nor does Dr Rao explain how the 2001 incident caused the sacroiliac joint dysfunction.
[154] ARD, p 106.
In his reports of 31 August 2020 and 11 January 2021, Dr Rao provides a further opinion on causation. In these reports Dr Rao explains that the sacroiliac joint dysfunction would have started from the 2001 injury and that the lumbar spine has never been the major issue. However, Dr Rao still does not explain how the 2001 incident caused the sacroiliac joint dysfunction nor does he deal with the evidence that indicates that the applicant’s symptoms in her low back were improving over the years (if indeed the low back symptoms were a result of the sacroiliac joint dysfunction). In this regard, I note that in 2008 Dr Hyde-Page records that her back pain had improved over the years. He records that the examination of the applicant “was completely normal” and that she had full range of lumbar spine movement.
A/Prof Seex supports Dr Rao’s opinion, and states that the sacroiliac joint problems stem from the 2001 incident and were not investigated or diagnosed. However, like Dr Rao,
A/Prof Seex does not explain how or why the sacroiliac joint problems stem from the 2001 incident. Indeed, A/Prof Seex does not explain how the low back complaints of pain are not related to the lumbar spine pathology or the applicant’s past back injuries. Indeed, it is unclear whether he reviewed the applicant’s radiological evidence in forming his opinion on causation.

Dr Bodel, in his March 2020 report, states that the injury to the lower back was a frank injury caused by the 2001 incident. He adds that there has been little in the way of progression of the disease process in the lower part of the applicant’s back. He notes that the sacroiliac joint appears to be the pain generator as a result of the 2001 injury. However, he does not adequately explain how or why it is the pain generator or why the applicant would not experience pain in her lower back as a result of the pathology in the lumbar spine.
In his supplementary report, in December 2021, Dr Bodel again comments on causation. Dr Bodel states that there is “probably a causal link” between the 2001 injury and the sacroiliac joint pathology caused by injury at that time. He adds that Dr Rao confirms that causal link. However, Dr Bodel does not explain adequately his process of reasoning to support his opinion on causation.
Dr Bentivoglio in his 2021 reports finds that the applicant has some persistent constitutional degenerative changes in her lumbar spine, but that the 2001 injury has resolved. He states that the applicant’s lumbar spine was flared up by the 2001 injury but that it is now not the cause of her low back pain and that these symptoms are not related to the sacroiliac joint degenerative changes. However, he does not explain the cause of the applicant’s pain. He states that he is not convinced that the 2001 injury caused the sacroiliac joint degenerative change, and notes that there has been 20 years for the degenerative changes to develop.
In March 2023, the applicant is referred to Dr Diwan for a second opinion on surgery. While Dr Diwan does not provide an opinion on causation, his opinion is relevant to the identification of the source of the applicant’s low back pain. Dr Diwan provides a detailed report on the applicant’s symptoms noting the background of many years of lumbar disc issues. In his second report, dated 22 March 2023 (at [57] above), Dr Diwan provides a detailed explanation as to why he considered the lumbar spine pathology between L3 and S1 was the major source of the applicant’s pain and not the sacroiliac joint. Having reviewed the radiological material, Dr Diwan found that there was no “strong evidence of sacroiliac involvement”.
Dr Rao commented on Dr Diwan’s opinion, in his report of 23 May 2023, and agrees that sometimes it is difficult to diagnose with both L5/S1 degeneration and sacroiliac joint as they are next to each other and one can lead to another. Although he states that the applicant’s symptoms have been present since the 2001 injury and because of this and treatment undertaken he considers the sacroiliac joint dysfunction is the more probable issue than the lumbar spine issue. However, Dr Rao does not in this report (or earlier reports) adequately address the applicant’s low back symptoms over the years and how this might relate to the applicant’s symptoms. The evidence indicates that these symptoms in the low back were not consistent, and indeed were improving prior to 2008.
I prefer Dr Diwan’s opinion on the cause of the applicant’s pain over Dr Rao, Dr Bodel and A/Prof Seex. Dr Diwan’s opinion was independently obtained by the applicant’s treating general practitioner solely for an opinion on the source of the pain. Dr Diwan provided an objective and well-reasoned opinion that the applicant’s source of her pain was a result of her lumbar spine. His opinion on the source of the applicant’s pain was confirmed, following a second consultation and a review of scans (including the scan he sought and conducted following his initial consultation two weeks earlier). Further, Dr Diwan’s opinion is based on an examination of the applicant which was conducted fairly recently in comparison to the other available expert evidence. The next most recent examination of the applicant, which informs an opinion on the source of the applicant’s pain, is over 12 months before Dr Diwan’s examination.
Dr Bodel and A/Prof Seex’s opinion is based on an acceptance of Dr Rao’s opinion. For the reasons discussed above, I prefer Dr Diwan’s opinion.

Interval of time

It is well accepted that the greater the interval between an incident and the first report of symptoms the more difficult it is to be confident of a causal nexus between any injury and claimed symptoms.[155] The absence of evidence of ongoing complaint of the lower back pain between 2008 to 2018 and the absence of complaint of the sacroiliac joint until around September 2018, a period of 17 years after the 2001 injury, is significant. This is on the background of the evidence that the applicant was examined by multiple medical practitioners and specialists on many occasions before the first diagnosis of sacroiliac joint dysfunction or complaint of sacroiliac joint issues.
[155] Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139.
I am mindful of the need to treat medical records with caution.[156] However, given my findings above regarding the complaint of the low back, the absence of complaint of sacroiliac joint pain for a period of 17 years cannot be ignored. On the available evidence, the applicant attended on the following medical practitioners and specialists between the incident in 2001 and the first reference to any sacroiliac joint issues in September 2018:
[156] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, [35] (per Mason P).
(a)    Dr Foot, general practitioner, on 2 July 2001 and at least 41 times between 7 September 2001 and 6 May 2005;
(b)    Dr Alterator, general practitioner, on 6 July 2001, 30 July 2001 and 11 May 2007;
(c)    Dr McCredie, general practitioner, on 21 June 2004;
(d)    Dr Ghabriel, orthopaedic surgeon, in November 2005;
(e)    Mr Thomas, chiropractor and acupuncture, on 20 December 2005;
(f)    Dr Nigel Hope, orthopaedic surgeon, on 16 March 2006;
(g)    Dr Gordon, general practitioner, on 18 April 2006, 29 April 2007 and
15 June 2007;
(h)    Dr Russo, pain management specialist, on 3 May 2006, 28 June 2006 and
6 March 2008;
(i)    Dr Prowse, rheumatologist, on 11 June 2006;
(j)    Dr Machart, orthopaedic surgeon, on 6 March 2007;
(k)    Dr Hyde-Page, Approved Medical Specialist, on 25 May 2008;
(l)    Dr Needs, rheumatologist and consultant physician, on 29 October 2013;
(m)     Dr Hennessey, clinical psychologist, on 29 October 2013;
(n)    Mr Rourke, physiotherapist, on 29 October 2013;
(o)    Dr Powell, orthopaedic surgeon, on 29 November 2016, and
(p)    Several general practitioners from Parramatta Medical Centre, at least 20 times between 25 May 2017 and 3 September 2018.
While the absence of any particular change or break in the causal chain in the applicant’s condition (which I do not accept and the applicant submits) is relevant it does not on its own establish the relevant causal nexus, and must be considered against the totality of the evidence.

Conclusion

Having regard to the principles in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[157] and the totality of the evidence, I am not persuaded on the balance of probabilities that there is a causal nexus between the fall in 2001 and any sacroiliac joint condition. As a result, I am not satisfied that the applicant has established an injury to her left sacroiliac joint arising out of or in the course of her employment.
[157] [2008] NSWCA 246.
As I have found that the applicant has not established injury under s 4 of the 1987 Act, it is not necessary that I deal with the remaining issues in dispute concerning the application of ss 59A and 60 of the 1987 Act.
For the reasons stated above, the applicant has failed to discharge her onus of proof that she suffered an injury to her sacroiliac joint on 29 June 2001 pursuant to s 4 of the 1987 Act.[158]
[158] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
Accordingly, there is an award for the respondent.

[2024] NSWPIC 271

23 May 2024