| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Thurlow v CDC NSW Pty Ltd [2024] NSWPIC 110 |
| APPLICANT: | Trevor Thurlow |
| RESPONDENT: | CDC NSW Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 7 March 2024 |
| DATE OF AMENDMENT: | 8 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and the cost of future surgery to the lumbar spine pursuant to section 60 arising out of or in the course of his employment as a bus driver for the respondent; the applicant also claimed that he injured his cervical spine at the same time as he suffered injury to the lumbar spine; claim disputed by the respondent employer on the basis of a long history of prior back problems which the applicant worker either understated, or failed to reveal, to doctors who treated or examined him; the applicant claimed injury pursuant to section 4(b)(ii); the respondent claimed that the applicant’s evidence was in respect of a frank incident only for which there was no medical support in his case, and he could not therefore rely on a ‘nature and conditions’ type claim; finding that the applicant had sustained injury to his lumbar spine pursuant to section 4(b)(ii); Held – award for the respondent in respect of claim for injury to the cervical spine; award for the respondent for weekly benefits as a result of injury to the lumbar spine, and for the cost of surgery thereon; award for the respondent in respect of claim for injury to the cervical spine. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained injury to his lumbar spine in the form of aggravation, acceleration, exacerbation or deterioration of a disease deemed to have occurred on 25 March 2022. 2. The applicant’s employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. 3. Award for the respondent in respect of the applicant’s claim for injury to the cervical spine deemed to have occurred on 25 March 2022. 4. As a result of injury on 25 March 2022 the applicant was partially incapacitated for work. 5. The applicant’s pre-injury average weekly earnings as at the date of injury were $1,134.68. 6. The applicant’s current pre-injury average weekly earnings are $1,230. 7. The applicant’s current weekly earnings are $461.16. 8. The respondent is to pay the applicant $522.84 per week from 28 September 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 9. The surgery recommended by Dr Ferch in his quotation for surgery on the lumbar spine dated 6 October 2022 is reasonably necessary as a result of injury on 25 March 2022. 10. The respondent is to pay for the costs of and incidental to such surgery. 11. The parties have leave to approach the Commission if there is to be an adjustment to the applicant’s entitlement to weekly benefits for the period 28 September 2023 to 1 October 2023. |
STATEMENT OF REASONS
BACKGROUND
Trevor Thurlow (the applicant/Mr Thurlow) claims weekly benefits and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on 25 March 2022 arising out of or in the course of his employment as a bus driver for CDC NSW Pty Ltd (the respondent/CDC).
The injury description on the Application to Resolve a Dispute (ARD) is:
“The Applicant was required to drive busses with seats that were not ergonomic, improperly positioned and did not have sufficient air levels, resulting in injuries to his lumbar spine and cervical spine as described in the Applicant’s Statement.” [sic]
Mr Thurlow commenced employment with the respondent in about October 2019 as a bus driver on a casual basis. His day-to-day duties involved driving school buses, charters, train replacement services and yard maintenance, working 32 hours a week over a five day period.
Prior to his employment with the respondent the applicant had sustained injury to his neck and lower back in employment in Victoria and New South Wales.
On 2 June 2019 Dr Richard Ferch, neurosurgeon, operated on Mr Thurlow’s neck, carrying out anterior decompression and fusion at C5/7 and C6/7. Dr Ferch carried out further surgery on the neck on 16 June 2022 when the fusion procedure was revised through a posterior approach, and a foraminotomy performed.
On or around 17 March 2022 the applicant claims that he experienced pain in his neck and back whilst completing a school bus run, because of the positioning on the driver’s seat and the air levels in the seat.
On 25 March 2022 while driving on a school bus run the applicant claims that he noticed the same problems with the driver’s seat as he had experienced the week before, and that because of the lack of comfort in the seat, and its positioning, he hurt his neck and back quite significantly.
The applicant claims that he experienced severe pain in his neck, back and left leg on
26 March 2022.The applicant consulted his general practitioner, Dr Aijaz Majeed, on 28 and 31 March, and 12 April 2022 complaining of lower back pain/back pain.[1] On 31 March an MRI was requested. On 12 April 2022 Dr Majeed arranged a physio referral and recorded “MRI – Multi-level disc bulges”. The report of the MRI scan dated 5 April 2022 is in evidence, requested 11 March 2022.[2]
[1] Application to Resolve a Dispute (ARD) pp 152 – 152, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
[2] ARD p 589.
Mr Thurlow returned to work on 4 April 2022, by which time he says that the pain had settled down because he was on medication, and he was able to return to light duties. He continued on these light duties, which involved mostly paperwork in the office, until about
10 August 2023 which was his last day at work with the respondent.The applicant was independently medically examined on 26 August 2022 by Dr Peter Spittaler, consultant neurosurgeon, who produced a report dated 6 September 2022.[3]
Dr Spittaler reviewed the MRI scan dated 5 April 2022 which he said:“… demonstrates multilevel disc degeneration, particularly involving L3/4 and L4/5. There is a right L4/5 disc bulge but no pathology that could produce left-sided nerve root pain from root compression.”
[3] Reply p 21.
Dr Spittaler recorded that Mr Thurlow told him that he had no lower back symptoms prior to March 2022, and that:
“He was driving a truck on a Friday with an air ride seat, which he said was faulty and did not support him, such that it bottomed out. He did the morning school run and had lower back pain.”
When asked to comment on the incapacity of Mr Thurlow for work, Dr Spittaler said:
“I think the current incapacity relates to the lower back conditions. That being said, I think that Mr Thurlow would not have been able to work for a period of approximately six weeks after his cervical surgery but he has recovered from that now. He has, however, ongoing lower back pain and some restriction and incapacity related to his back problem.”
When asked if there was evidence of a pre-existing condition, and if so, had it been aggravated/exacerbated by the applicant’s employment, Dr Spittaler said that he was sure that Mr Thurlow had some prior lumbar disc degeneration but this was asymptomatic on the worker’s account and was likely to have remained asymptomatic. The doctor noted that the applicant had other risk factors for disc degeneration, including being a cigarette smoker.
Dr Spittaler also said that the incident, relying on the worker’s history, was responsible for the applicant’s symptoms, but not necessarily (the) pathology. “It has made the underlying lumbar disc degeneration (which would be common in a physical worker of this age who smokes), symptomatic.”The applicant consulted Dr Ferch on 6 October 2022 on referral by Dr Majeed. Dr Ferch recommended decompressive surgery on the left at L4/5 to improve left leg pain. Dr Ferch undertook to write to the insurer seeking approval to surgery.[4]
[4] ARD p 703.
On 11 November 2022 the respondent’s self-insurer, ComfortDelgro Corporation Australia Pty Ltd by its Claims Agent QBE (QBE), issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for the spinal decompression at L4/5 requested by Dr Ferch. In the reasons for decision, the author of the s 78 notice noted that on 25 March 2022 the applicant submitted a claim for compensation for lower back pain arising from a faulty driver’s seat on the bus that he was driving, and that at the time he was waiting to have a cervical spine fusion that had been delayed due to COVID-19. The author also noted that in the pre-employment medical for CDC Mr Thurlow declared a previous injury to his neck and lower back confirming he had disc bulges. Treatment for other conditions was noted.
The author of the s 78 notice noted that requests had been made for copies of clinical records, and a response to a nominated treating doctor (NTD) questionnaire, to which no reply had been received. Accordingly, due to the unavailability of these records, a determination of the reasonable necessity of the proposed surgery pursuant to s 60 of the 1987 Act could not be made, and the request for surgery was declined.
The applicant was independently medically examined by Dr Eugene Gehr, orthopaedic surgeon, on 10 January 2023. Dr Gehr produced a report of that date.[5]
[5] ARD p 29.
Dr Gehr recorded that the applicant’s injury occurred at work on 25 March 2022 when he was working as a bus driver for the respondent. The injury occurred at 7.50am, when Mr Thurlow was driving a bus which had a faulty seat. “He was travelling over uneven ground, he jarred his back and into his left buttock, posterior thigh and posterolateral calf.” [sic]
Dr Gehr summarised in some detail the reports of Dr Ferch dated 6 October 2022 and
Dr Spittaler dated 6 September 2022, and to the MRI scan dated 5 April 2022, referred to above at [9]. Dr Gehr recorded past medical history as:(a) prior to accident of 25 March 2022, Mr Thurlow had a problem with his cervical spine with two surgical procedures, anterior fusion in 2019 and posterior fusion on 15 June 2022, and
(b) prior to subject accident on 25 March 2022, Mr Thurlow had only occasional lower lumbar spine pain, saw his general practitioner about it and had physiotherapy. He reported no other problems with upper extremities or lower extremities.
Dr Gehr found that the applicant suffered:
“… injury, work-related, from 25/3/2022 with injury to his lumbar spine with development of lumbar spine pain and left leg symptoms.
…
There was a prior history of low back pain on an intermittent basis but of low intensity.
…
He also had cervical spine symptoms with two surgical procedures to cervical spine most recent was 15/6/2022. Cervical spine symptoms were aggravated by subject accident. On examination today, I found evidence of cervical spine guarding, dysmetria and hyper paraesthesia at C6-C8 on the right side.”
With this report of Dr Gehr the applicant on 13 January 2023 requested a review of the decision contained in the s 78 notice dated 11 November 2022 pursuant to s 287A of the 1998 Act. In a s 78 notice dated 25 January 2023 QBE affirmed the decision to decline liability for the applicant’s claim, noting that it still did not have access to Mr Thurlow’s clinical records.[6]
[6] ARD p 25.
Dr Spittaler produced a supplementary report dated 3 May 2023 after reviewing “the file of 145 pages, largely comprised of Mr Thurlow’s general practitioner’s notes”. He said, “This presents a very different history to the one provided to me by the claimant.”[7]
[7] Reply p 25.
Dr Spittaler said that when he saw Mr Thurlow in September 2022, based on his symptoms and the MRI dated 5 April 2022 that he viewed personally, he did not believe that the applicant needed surgery:
“Unless there has been some further injury or change in the worker’s symptoms or change on his MRI, I don’t think that there will be any value in offering this man surgery.”
Dr Spittaler noted no material difference in the MRI performed in 2022 compared with the previous imaging, both CT and MRI. On that basis, and particularly with regard to the multiple consultations and acupuncture treatment that was documented in the general practitioner’s notes, stretching back as far as 2008, he thought it unlikely that there had been a significant aggravation from the incident in 2022.
Dr Spittaler endorsed the statement put to him that it was more likely than not that the applicant’s current incapacity related to the pre-existing state of his back rather than any injury on 22 March 2022.
Dr Spittaler also said that Mr Thurlow would be ill advised to work as a bus driver, not least because of his unrelated cervical condition, which the doctor thought would also preclude him long-term from working as a bus driver, quite apart from any lumbar symptoms.
The last s 78 notice was issued by QBE on 10 August 2023, after receipt of the applicant’s treating medical evidence and the report of Dr Spittaler dated 3 May 2023.[8] In that notice QBE asserted that a review of that evidence confirmed that the applicant had long standing neck and back complaints which he related to an earlier injury with another employer, and that Dr Spittaler was of the view that the ongoing complaints and incapacity were not related to injury sustained with the respondent.
[8] ARD p 19.
QBE therefore relied on ss 4, 4(b), 9A, 33, 59 and 60 of the 1987 Act to place in issue the following in respect of the injury claimed by Mr Thurlow to have occurred on 25 March 2022:
(a) that injury arose out of or in the course of employment of the respondent (s 4);
(b) that the applicant’s employment with the respondent was a substantial contributing factor to any such injury (s 9A);
(c) that the applicant’s employment with the respondent was the main contributing factor to either the contraction of, or the aggravation, acceleration, exacerbation or deterioration (aggravation etc) of a disease injury (s 4(b)(i) or (ii));
(d) that the applicant was not entitled to weekly payments for his claimed injury because he did not have total or partial incapacity for work resulting from an injury (s 33), and
(e) that the medical or related treatment was not reasonably necessary as a result of an injury (ss 59 and 60).
Dr Gehr supplied a supplementary report dated 14 October 2023[9] in which, in answer to a question seeking his opinion as to whether the applicant’s employment was,
(a) the main contributing factor to an aggravation etc of his pre-existing cervical spine and lumbar spine injuries, or in the alternative
(b) the main contributing factor to a disease of a gradual process, or in the alternative
(c) an aggravation etc of the disease, or in the alternative
(d) a substantial contributing factor to any new injuries or conditions, said:
“His employment with the respondent was the cause of his injuries.”
[9] ARD p 44.
In that report Dr Gehr responded to the opinions of Dr Spittaler in his report dated
3 May 2023 as follows:(a) the history received by Dr Gehr was that the applicant had not recovered from the cervical spine surgery;
(b) he agreed that the applicant could perform some sedentary work for restricted hours;
(c) the applicant would never be able to return to work as a bus driver, and
(d) the current diagnosis in respect of the lower back was, having regard to the history he was given by the applicant that he previously had occasional lower back pain and that it was probably not of a significant nature given that he was performing his job, was “a minor aggravation”. This was in contrast with
Dr Spittaler’s opinion that the injury was an exacerbation of lumbar intervertebral disc disease.
ISSUES FOR DETERMINATION
The parties agree that the issues that remain in dispute are those set out in [29] above. The principal submission of the respondent at the hearing was that the applicant’s injury was not one based on the ‘nature and conditions’ of his employment with the respondent, but pleaded as a frank injury on 25 March 2022. The respondent submits that any such incident, if it occurred and having regard to the applicant’s past medical history which he sought to down play to doctors who treated or examined him, did not cause the incapacity for work which he claimed, or the reasonable necessity for the surgery recommended by Dr Ferch.
The parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) as at the date of injury were $1,134.68, and as at the date of hearing after indexation was applied, $1,230.
PROCEDURE BEFORE THE PERSONAL INJURY 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 in Newcastle on 20 February 2024.
Mr Robison of counsel appeared for the applicant briefed by Mr Stanikovski. The applicant was present. Mr Guest, solicitor, appeared for the respondent. Representatives of the respondent and QBE attended.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply ant attached documents;
(c) Application to Admit Late Documents (AALD) dated 10 November 2023 lodged by the applicant with a supplementary statement of ths applicant dated
9 November 2023, and annexure A thereto, attached (AALD 10 November 2023), and(d) AALD dated 22 November 2023 lodged by the respondent with extract of claim files authored by ERML/icare attached (AALD 22 November 2023).
Oral evidence
There was no application to adduce oral evidence. The respondent requested leave to cross-examine the applicant at the preliminary conference on 6 December 2023. However, at the arbitration hearing it did not press this request when the applicant acknowledged that he had suffered pre-existing injuries/conditions in his lumbar and cervical spine.
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained in request. In summary, they are as follows.
Applicant
The applicant submits that the respondent in presenting its case labours under a misapprehension as to what injury is under the workers compensation act, and the fact that the applicant had previous problems in the body parts which are the subject of the claim of injury against the respondent borders on being irrelevant. This is because of the legal reality that the aggravation or exacerbation injury is itself an injury.
However, as liability has been denied, that the applicant must persuade the Commission that he is entitled to the weekly benefits he seeks and the cost of the spinal decompression surgery claimed.
The applicant submits that the date of injury is a deemed date, as the injury is an aggravation of a disease process, which occurred in the course of his employment as a bus driver. This is because within the bus that he had to drive there were problems with the driver’s seat, which were brought to the attention of the respondent and not fixed. As a result, he injured his cervical spine and lumbar spine.
The applicant notes that in the two statements he provided, commencing with the statement dated 11 September 2023,[10] he outlines the nature of his duties as a bus driver, something the applicant submits the Commission could take “judicial notice of”. He worked 32 hours a week for $36 per hour.
[10] ARD p 2.
The applicant notes that he concedes previous injury to his back in 2003 during self-employment with his own company, as noted in [7] of the statement, and that in [10] he says that in around March 2008 during such employment he felt pain in his neck and lower back while driving a tractor across a mine site when the air dropped out of his seat in the tractor. The applicant concedes that he felt pain in both his neck and lower back. The applicant submits that his concessions “are complete”, noting that he says that he felt the pain became progressively worse and he started to feel pain in both of his arms.
The applicant notes that that he was never 100% since those injuries, and then refers to the discussion with his depot supervisor, James, on 17 March 2022 and another manager, Mat, about the positioning of his seat and the air levels therein.
The applicant refers to details of the subject injury at [17] – [23] of his statement, his symptoms at [38] – [42], and his current situation from [43] onwards.
The applicant refers to his supplementary statement dated 30 October 2023, prepared from diary notes referred to in annexure “A” thereto (which is not in evidence).[11] The applicant notes that the current proceedings are not a negligence case, and it is not necessary to refer to the details of his interactions with his employer on and around 25 March 2022 in respect of the bus he was driving, and the driver’s seat therein. However this evidence indicates that there was a problem with the seat.
[11] ARD p 7.
The applicant refers to the initial s 78 notice dated 11 November 2022, which, it is noted, does not clearly place in issue injury pursuant to s 4 of the 1987 Act. This issue is raised later by the respondent.
The applicant notes that Dr Gehr, in preparing his report dated 10 January 2023, had access to the reports of Dr Ferch dated 6 October 2022, Dr Spittaler dated 6 September 2022, the clinical notes of Dr Ferch and the s 78 notice dated 11 November 2022.
I note at this stage that the applicant in submissions refers to the “Opinion and diagnosis:” on p 4 of Dr Gehr’s report.[12] My understanding of the submission is that the applicant was here referring to the opinion and diagnosis of Dr Gehr. However, it is clear from a reading of the whole of the report that this is part of the “Further details on these documents…” with which Dr Gehr was supplied, and that at this point in his report the doctor is referring to the report of Dr Spittaler dated 6 September 2022.
[12] ARD p 32.
Be that as it may, the applicant refers to the “History of the Accident” on p 6 of Dr Gehr’s report,[13] submitting that the occurrence of the injury recorded by Dr Gehr as at 7:50am on
25 March 2022 must be looked at in the context of the problems which Mr Thurlow had experienced with the bus seat prior to that date.[13] ARD p 34.
The applicant submits that he is relying on the ‘disease’ provisions of the workers compensation legislation, in accordance with the way in which the description of injury appears in the ARD Form 2, “Aggravation, acceleration or exacerbation or deterioration of disease.” That is, an injury pursuant to s 4(b)(ii) of the 1987 Act.
The applicant relies upon the balance of Dr Gehr’s report in respect of past and future treatment [3.6] and capacity for work [3.7].[14]
[14] ARD pp 39 and 41.
The applicant relies upon the supplementary report of Dr Gehr dated 14 October 2023, summarised above at [30] – [31].
The applicant refers to the report of Dr Ferch dated 24 October 2023 and his opinion at [3.4] thereof, submitting that the applicant’s employment was the main contributing factor to the aggravation of applicant’s back condition.
The applicant quotes [3.4] to the following extent:
“Mr Thurlow developed low back and left lower limb pain after his back was jarred whilst driving a bus. He was not limited by low back symptoms prior to this incident and the incident was repeated on a number of occasions aggravating his symptoms, Therefore, his employment was the main contributing factor to his low back symptoms.”
The applicant submits that it was not therefore a frank incident which caused his injury. The last sentence of this excerpt is not the legal test, but is understood in the context of aggravation of a disease injury.
The applicant submits that this is confirmed by the supplementary report of Dr Ferch dated
1 November 2023.[15][15] ARD p 53.
The applicant refers to the Pre-Employment Medical dated 23 October 2019.[16] The applicant submits that he has made a frank disclosure at [2] thereof when asked if he ever had had any work related injury or illness, and replies “Neck & lower Back.”
[16] Reply p 2.
The applicant refers to the report of Dr Spittaler dated 6 September 2022, and submits that the history of injury provided to the doctor of “…no lower back symptoms prior to March of this year” must be looked at in the context of what he says in his statement that he was guarding himself because of his previous back injuries, and it may be that this doctor has been slightly imprecise in recording this. The applicant submits that cases such as Mason v Demasi[17] illustrate that doctors do not always appreciate the subtle differences in the way that things are expressed.
[17] [2009] NSWCA 227 and [2012] NSWCA 210.
The applicant notes the response of Dr Spittaler to the specific questions that are put to him in that report, in respect of incapacity for work, and the surgery on the cervical spine, and submits that in view of what Dr Spittaler says at [4] that the diagnosis of the lower back is an exacerbation of lumbar intervertebral disc disease simply makes the respondent’s position untenable, even on its own evidence. It is not suggested that such exacerbation was caused by anything other than the applicant’s work.
In respect of the supplementary report of Dr Spittaler dated 3 May 2023, referred to above at [23] – [27], the applicant submits that the answer “Yes it is” to a question in [1] “Whether the history of back complaints is relevant to his current presentation?” is simply a bare ipse dixit, and not helpful to determination of the issues in the current proceedings. It may be helpful in the case of a claim for lump sum compensation.
The applicant submits that the respondent’s case is predicated on a misapprehension of what injury is.
In respect of Dr Spittaler’s opinion that the applicant does not need surgery, the applicant submits that the opinion of Dr Ferch, supported by Dr Gehr, should be preferred to that of
Dr Spittaler. Dr Ferch, as the treating specialist, is most persuasive in respect of the reasonable necessity for future surgery. All that is required of the applicant is to show that the injury suffered materially contributed to the need for the surgery proposed in the lumbar spine.The applicant submits that in view of his concession of past injury to his lumbar spine and cervical spine, it is not necessary to refer to the material lodged by the respondent with the AALD 22 November 2023.
The applicant submits that, even if the overwhelming percentage of pathology in his lumbar and cervical spine pre-existed the injury suffered in the employ of the respondent, provided the Commission is satisfied that such employment was the main contributing factor to the worsening of the condition in the cervical spine and lumbar spine, the applicant is entitled to an award.
In respect of the claim for weekly benefits, that applicant submits that prior to the injury he had some minor extant problems, and that although he guarded himself because of these problems, he was clearly able to work and now he cannot. Therefore, applying the Watts v Rake[18] test of before and after, there is a partial shifting of onus of proof in respect of the applicant’s capacity to work.
[18] (1960) 108 CLR 158.
The applicant did submit that, as injury per se pursuant to s 4 of the 1987 Act was not put in issue in the first s 78 notice dated 11 November 2022, the respondent would need leave to now rely on this issue, although any application for such leave would not be opposed. I granted such leave, if necessary, noting that this issue was relied upon in the s 78 notice dated 10 August 2023.
In respect of capacity for work, the applicant submits that his entitlement to weekly benefits should be calculated with reference to the hourly rate that he was receiving in his employment with the respondent, $36, for four hours a day, three days a week.
Respondent
In opening submissions, the respondent refers to a statement of the applicant dated
3 February 2023 that it says was given in earlier proceedings between the parties.[19] That is extremely lacking in detail, and makes no reference to earlier claims for compensation against a workers compensation insurer in Victoria. These claims for compensation in respect of injury to the neck and back are attached to AALD 22 November 2023.[19] Reply p 27.
The respondent refers to the claim form dated 10 April 2019[20] in which the applicant describes an injury in October 2007 – 2008 as he was driving a tractor across rough ground when an air line to the seat came off causing the seat to drop to the floor suddenly jarring his neck and back.
[20] AALD 22 November 2023 p 2.
A claims history appears at pp 36 - 36 of that bundle of documents revealing a lower back injury in 2002 when a tractor reversed into a grape bin which resulted in the applicant twisting his back.
The respondent submits that it is fundamental to the applicant’s case the applicant was truthful to doctors about his pre-existing medical condition. Reliance cannot be placed on the medical evidence if it is not predicated on the truth.
The respondent notes that the report of Dr Gehr dated 10 January 2023 contains a history of the accident that the applicant’s injury occurred at work at 7:50am on 25 March 2022 when he was driving a bus which had a faulty air ride seat. Mr Thurlow was driving a bus over rough ground when he jarred his back and experienced pain onto his left buttock, posterior thigh and posterolateral calf. Dr Gehr records a prior history recorded of low back pain on an intermittent basis but of low intensity.
The applicant refers to the history recorded by Dr Ferch in his report dated 24 October 2023 of a specific event causing the development of low back and left lower limb pain on
25 March 2022.The respondent submits that the applicant’s claim is not a ‘nature and conditions’ claim, as in accordance with these histories recorded by the doctors, he is relying on a specific event on 25 March 2022 which gave rise to the symptoms in the neck and the back. The medical evidence does not contain a discussion of the applicant driving buses over a period of time as the cause of the symptoms experienced by the applicant.
The respondent submits that it was only after the initial proceedings were withdrawn (evidence of which is not before the Commission) that a supplementary report was obtained from Dr Gehr dated 14 October 2023, in which the doctor confirms the history presented to him in his previous report, and at [3.3] of that report simply says of the applicant that “His employment with the respondent was the cause of his injuries”. The questions put to Dr Gehr to elicit this response are set out at [30] above.
The respondent submits that this is not a case where the applicant had occasional back pain before 25 March 2022, but a long history of low back pain. The basis on which Dr Spittaler provided his first report dated 6 September 2022 was on a history that Mr Thurlow had no lower back symptoms prior to March 2022, but that was not the case. The applicant has a long history of back problems extending back to 2002.
The respondent’s primary submission is that he does not have medical evidence to support the case that he suffered injury as a result of the so called ‘nature and conditions’ of his employment with the respondent. The evidence he relies upon is that a specific event occurred on 25 March 2022 which caused injury to his lumbar spine and symptoms in his cervical spine.
The respondent notes that the causation of the injury relied upon in the current proceedings is similar to that relied upon in respect of the tractor incident in 2007 – 2008 referred to in [70] above.
The respondent submits that the applicant’s credit is a fundamental issue in the current proceedings.
The respondent refers to a consultation the applicant had with Dr Majeed on
11 March 2022,[21] when Mr Thurlow visited for “Bilateral foraminal /canal stenosis”, indicating that on this date, 14 days before the date of injury relied upon, he complained of the issues recorded therein. The respondent submits that this consultation was obviously for the applicant’s back problems.[21] ARD p 142.
The respondent notes that the MRI scan of the whole spine dated 5 April 2022 was requested on 11 March 2022 by Dr Majeed.[22] The respondent notes that this is two weeks prior to the date of injury nominated by the applicant, and is not mentioned in his statements.
[22] ARD p 589.
The respondent submits that Dr Spittaler in his supplementary report dated 3 May 2023 finds that there is no difference in the MRI performed on 5 April 2022 compared to previous imaging, both CT and MRI. In this regard, the respondent refers to the MRI scan dated
25 June 2018,[23] the conclusion in the report thereon in respect of the lumbar spine includes “Similar appearances to the previous study”, and an earlier MRI scan dated18 November 2011,[24] the report on which contains the comment at the end thereof “Multilevel disc degeneration without significant focal herniation or signs of neural compromise.”[23] ARD pp 428 – 429, AALD 22 November 2023 p 172.
[24] AALD 22 November 2023 p 175.
For the foregoing reasons, the respondent submits that the Commission would not be satisfied that the applicant sustained injury as alleged, as he does not have medical evidence to support it, emphasising again that the applicant’s case is not presented as a ‘nature and conditions’ claim.
The respondent notes that Dr Ferch finds that the applicant’s employment with the respondent was not the main contributing factor to his neck condition, noting the delayed surgery that Dr Ferch performed on the cervical spine in June 2022. In respect of the neck, the respondent notes a long history of complaints from 2002, similar to a long history of complaints in respect of the lumbar spine.
The respondent notes that the applicant consulted Dr Hodgson, chiropractor, on
11 February 2002 with mid to lower back pain, and a history of the back flaring up on occasions and when it does, the pain is significant.[25] Mr Thurlow subsequently consultedDr John Christie, neurosurgeon, on 20 April 2011 with a history of “…back problems on and off for some time I think.” Dr Christie arranged an MRI scan.[26][25] AALD 22 November 2023 p 216.
[26] AALD 22 November 2023 p 215.
The respondent notes a consultation with Dr Cecil Ford on 25 September 2008 complaining of an:
“Acut relapse of low back pain from O/A of Z-jts and Scheurmann’s-too tender for acupuncture; not worked for two days;…” [sic][27]
[27] AALD 22 November 2023 p 168.
The respondent notes further problems recorded in the clinical records from p 168 of AALD 22 November 2023 onwards in respect of back pain, including reference to a consultation with Dr Shatha Al-Attiyah on 21 January 2011 who recorded a history of back pain, disc prolapse, pain on the left side to the buttock and no urinary symptoms.
The respondent notes that on 16 March 2017 Mr Thurlow sought physiotherapy treatment, presenting with “Bilateral knee pain + chronic LBP”, and aggravating behaviour listed as “Stairs sitting long periods”.[28]
[28] ARD pp 430 - 431.
The respondent notes that Mr Thurlow visited Dr Jun Zhao on 2 February 2019 in respect of a “Disabled pension claim” and “Chronic pain”.[29] He visited Dr Zhao again on 5 August 2019 when there was long discussion about his current condition, reference to a court case claiming for workers compensation, and other matters. The applicant was advised to refer back to Dr Ferch.[30]
[29] ARD pp 109 - 110.
[30] ARD p 121.
The respondent submits that this long history of back complaints demonstrates that reliance cannot be placed on the histories given to doctors whose evidence is relied upon in the current proceedings, who refer to a specific event on 25 March 2022 as the cause of the condition in the applicant’s lumbar spine. There is no medical support for any ‘nature and conditions’ claim.
The respondent submits that Dr Ferch was not provided with a full history of the applicant’s prior back problems, although, when provided with a history of the applicant’s previous neck problems, he does find that Mr Thurlow’s employment with the respondent was not the main contributing factor to his neck condition.
The respondent submits that even if there is a finding that an incident occurred giving rise to symptoms in the applicant’s back, in accordance with opinion of Dr Spittaler, there were no long term consequences from this incident at all.
In respect of incapacity for work in the event that there is a finding for the applicant on injury and incapacity, the respondent adopts the applicant’s submissions thereon.
Applicant in reply
The applicant submits that even if there is a finding that 99% of the pathology in his back pre-existed the date of injury, it is sufficient if say 0.51% thereof was due to aggravation in the respondent’s employ for there to be a finding that such employment was the main contributing factor to the aggravation etc in the lumbar spine. In other words, a minimal aggravation is sufficient to constitute an injury.
The applicant notes that although the respondent places his credit in issue, it did not proceed with the earlier foreshadowed cross-examination of him.
The applicant notes that when one looks at the files of the previous claims made by him, what is found therein is consistent with his concession that he did have pre-existing problems in his neck and back, meaning that his credit should not be called into question.
The applicant submits that this is not a case of personal injury per se, and that the respondent’s submission that there has been no pathological change in the lumbar spine demonstrated on the radiological investigations does not mean that he cannot succeed in this case. A pathological change would need to be demonstrated if the applicant was relying on a frank injury, but not as in this case, the disease provisions of the legislation.
FINDINGS AND REASONS
Injury
In submitting that the applicant sustained an injury of the type pleaded in the ARD, namely, “Aggravation, acceleration or exacerbation or deterioration of disease”, the applicant refers to two cases in which this concept is discussed, North Coast Area Health Service v Felstead,[31] and Military Rehabilitation and Compensation Commission v May.[32]
[31] [2011] NSWWCCPD 51 (Felstead).
[32] [2016] HCA 19 (May).
In Felstead, Deputy President Roche said at [83]:
“Mr Robison also submitted that ‘[t]he previous distinction between diseases and personal injury has been abolished by the High Court’. That is not correct. While the majority in Zickar made it clear that the terms ‘personal injury’ and ‘disease’ are not mutually exclusive, Gleeson CJ and Kirby J observed (at [40]) in Petkoska:
‘The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.’”
And at [87]:
“It follows that, consistent with Zickar and Petkoska, a personal injury is a sudden identifiable pathological change.”
The reference to Zickar and Petkoska is to:
Zickar v MGH Plastic Injuries Pty Ltd[33]
Kennedy Cleaning Services Pty Ltd v Petkoska[34]
[33] [1996] HCA 31; 187 CLR 310.
[34] [2000] HCA 45; 200 CLR 286 (Petkoska).
In May, the High Court considered the definition of injury in the context of the definition of that term in the Safety, Rehabilitation and Compensation Act 1988.
The High Court said at [48]:
“That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word.’" (emphasis added)
The High Court’s reference to “Kennedy Cleaning” is a reference to Petkoska.
The applicant referred to these cases to emphasise that in his case, he was not relying on the fact that he suffered a “personal Injury” in the sense contemplated by s 4(a) of the 1987 Act, but one referred to in s 4(b)(ii) of that Act.
The applicant submits that all he needs to show is that he has suffered an aggravation etc of his pre-existing disease, in either the cervical or lumbar spine, and that his employment was the main contributing factor to that aggravation etc. An increase in symptoms to which the applicant’s employment was the main contributing factor can amount to aggravation etc of the disease.
In Rural Press Limited v Hancock,[35] a decision which pre-dated the amendment to the 1987 Act in 2012 to require that a worker’s employment be the main contributing factor to aggravation etc of injury, Acting Deputy President Moore put the matter thus:
“The proper test is whether the aggravation to which the employment was a contributing factor had some tangible effect on the worker. It is not necessary for the disease to be made worse.”
[35] [2009] NSWWCCPD 160.
In Kelly v Western Institute NSW TAFE,[36] Deputy President Roche said at [66]:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the applicant is increased or intensified by an increase or intensifying of symptoms.”
[36] [2010] NSWWCCPD 71.
That is, the applicant’s employment must be shown to be main contributing factor to the increase or intensifying of the symptoms.
On the other hand, if the increase or intensifying in symptoms simply represents the ongoing manifestation of a pre-existing disease, the applicant cannot show that his employment with the respondent was the main contributing factor to aggravation etc of such disease, and he will not succeed on the issue of proving injury arising out of or in the course of such employment.
To assist in the determination of this issue, an examination of the medical evidence on which the parties rely is required.
In this regard, evidence of Dr Majeed, the treating general practitioner, and the reports of
Dr Ferch, Dr Gehr, and Dr Spittaler are of most assistance.
Dr Majeed
The applicant saw Dr Majeed in consultation on 11 March 2022, with the reason for visit listed in the consultation note as “Bilateral foraminal stenosis/canal stenosis”. As noted in [81] – [82] above, the respondent places significance on this visit, noting that it was 14 days prior to the date of injury relied upon by the applicant, and that the consultation was obviously for the applicant’s back problems. I do not agree.
The MRI which the applicant underwent on 5 April 2022 was requested by Dr Majeed on
11 March 2022. It was of the full spine. Included in the report on the cervical spine is:“C5/6 has evidence of fusion anteriorly. Canal is normal in size. There is foraminal narrowing bilaterally. Apophyseal joints are preserved.”
The reference to the C5/6 fusion appears to be the anterior decompression and fusion surgery at C5/6 and C6/7 carried out by Dr Ferch on 5 June 2019.
The previous MRI scan of the cervical spine was carried out on 25 June 2018, referred to above at [83]. Included in the conclusion on the report on that scan, in respect of the cervical spine, is:
“Widespread cervical spondylosis. At C6/7 there is a moderately severe foraminal stenosis bilaterally. Milder changes at C5/6.”
In my view, having regard to the care which must be exercised in reading too much into the clinical notes of busy treating medical practitioners, and to the wording of the clinical note,
Dr Majeed was on 11 March 2022 probably referring the applicant’s previous problems with his cervical spine and not to his lumbar spine as submitted by the respondent. I do not draw and adverse inference from the fact that Dr Majeed made the referral for the MRI scan dated 5 April 2022 on 11 March 2022.At the consultation on 28 March 2023 Dr Majeed recorded the following history and reason for visit:
“Low back pain.
Work removed his comfort seat while driving School Bus.
Constant vibration has caused Problems for his lower back.
Wants to go on work cover as he is of the opinion that his back will need further extended treatment as there are
ongoing issues.
Advised F2F review in 2-3 days to discuss and manage the above situation / condition.
Reason for visit:
Low Back Pain”
At the consultation of 31 March 2022, Dr Majeed recorded:
“WCC for his back pain
Suitable light duties
Reason for visit:
Lower Back Pain WCC”
Under “Actions” Dr Majeed records an imaging request printed to Hunter Imaging Group for an MRI scan for the cervical/thoracic/lumbosacral spine.
At the consultation on 12 April 2022 Dr Majeed records that “WCC extended”, a physio referral was arranged, and “MRI – Multi-level disc bulges” recorded. The reason for visit is given as “Lower back pain WCC”. It seems that by that date Dr Majeed had seen the report on the MRI scan dated 5 April 2022.
Dr Ferch
There are three reports of Dr Ferch in evidence dated 23 February 2023,[37]
24 October 2023,[38] and 1 November 2023.[39][37] ARD p 724.
[38] ARD p 49.
[39] ARD p 53.
In the first report addressed to Unified Healthcare Group Dr Ferch records a history that
Mr Thurlow developed low back pain and left lower limb pain on 25 March 2022, when he was driving a bus where he works which had a faulty air ride seat. The vehicle travelled over uneven ground jarring his back and precipitating pain across his back in addition to pain radiating into his left buttock, posterior thigh and posterolateral calf. Dr Ferch recorded the long history of symptoms associated with the neck and treatment thereon, including surgery on two occasions. He recorded on the MRI scan dated 5 April 2022, and diagnosed lumbar spondylosis and left lower limb pain. Dr Ferch said that the applicant’s symptoms did have the potential to respond to transforaminal injections, and that there was a 70% chance that surgical treatment would substantially improve the lower limb pain.Dr Ferch said that Mr Thurlow’s left lower limb pain was precipitated by his work injury and the symptoms have persisted. “Therefore, the proposed surgery is reasonable and necessary”.
In his report to the applicant’s solicitor dated 24 October 2023 Dr Ferch repeated a history consistent with that in his earlier report, in respect of the occurrence of the development of low back and left lower limb pain on 25 March 2022, the cervical spine symptoms and treatment, and the review of the MRI scan dated 5 April 2022. When asked for his opinion as to whether the applicant’s employment with the respondent was a substantial contributing factor to any new injuries of conditions, Dr Ferch said:
“Mr Thurlow developed low back and left lower limb pain after his back was jarred whilst driving a bus. He was not limited by low back symptoms prior to this incident and the incident was repeated on a number of occasions aggravating his symptoms. Therefore, his employment was the main contributing factor to his low back symptoms. Mr Thurlow had a long history of cervical spine symptoms for which he had undergone multiple surgeries. These pre-dated the incidents and the employment with the Respondent was not the main contributing factor to his cervical spine symptoms.”
When asked to comment on Dr Spittaler’s report (which is not specifically referred to, but I infer it was the report dated 6 September 2022), Dr Ferch noted that Dr Spittaler had diagnosed Mr Thurlow’s symptoms (as) due to an exacerbation of lumbar intervertebral disc disease. Dr Ferch agreed with Dr Spittaler’s statement that Mr Thurlow could undertake sedentary work, and agreed with the answer provided by Dr Spittaler to question “3.4” (sic, [3]) as outlined in the report.
In his short report to the applicant’s solicitor dated 1 November 2023, Dr Ferch in response to a specific question which is not recorded in the report said:
“Mr Thurlow developed low back and left lower limb pain after his back was jarred whilst driving a bus. He was not limited by low back symptoms prior to this incident and the incident was repeated on a number of occasions aggravating his symptoms. Therefore, his employment was the main contributing factor to Mr Thurlow developing his low back symptoms. The surgery is reasonable and necessary as he has failed to respond to conservative treatment.”
Dr Gehr
Dr Gehr independently medically examined the applicant on 10 January 2023 and provided a report to the applicant’s solicitor on that day.
This report is summarised at [18] – [21] above and relevantly referred to at [49] in the summary of the applicant’s submissions. A significantly relevant part of that report appears under “Past Medical History” as follows:
“He tells me that prior to subject accident 25/3/2022, he only occasionally had lower lumbar spine pain and saw his GP about it and had physiotherapy. He reports no other problems with upper extremities or lower extremities.”
Under “History of the Accident” Dr Gehr records:
“The injury occurred at work on 25/3/2022 when he was working as a bus driver for CDC bus. The injury occurred at 7:50 a.m. He was driving a bus which had faulty air ride seat. He was travelling over uneven ground, he jarred his back and into his left buttock, posterior thigh and posterolateral calf. He tells me that a week earlier, had reported a faulty seat to his supervisor but nothing had been done. They said the seat had been fixed but in fact it had not. He told his boss that he would not continue working until his seat was fixed. The seat was replaced that day.”
Under “Summary and Conclusion” Dr Gehr stated:
“This is a 55-year-old man, injury, work-related, from 25/3/2022 with injury to his lumbar spine with development of lumbar spine pain and left leg symptoms. Under the care of his neurosurgeon with a proposal for a steroid injection an decompressive surgery, left side at L4-5.”
…
“There was a prior history of low back pain on an intermittent basis but of low intensity.”When asked if the applicant’s employment was a substantial contributing factor to the injury sustained on 25 March 2023 and/or in the alternative whether such employment was the main contributing factor to an aggravation etc of a pre-existing condition, Dr Gehr said:
“His employment was the cause of his subject accident
I do note that I have stated the cervical spine injury was an aggravation.”
Dr Gehr recommended the surgical procedure as recommended by the applicant’s treating surgeon.
Relevant parts of Dr Gehr’s supplementary report dated 14 October 2023 are summarised at [30] – [31] above.
Dr Spittaler
The relevant parts of the reports of Dr Spittaler dated 6 September 2022 are summarised at [11] – [14] above, and of the report dated 3 May 2023 at [23] – [27] above, and do not need to be repeated.
Discussion
Lumbar spine
There is no doubt that the applicant experienced significant problems with his lumbar spine dating back to 2002. These are referred to above and not put in issue by Mr Thurlow.
The applicant relies on a deemed date of injury of 25 March 2022 and aggravation etc of a pre-existing disease in his lumbar spine as the cause of his injury. He says that the bus he was driving on 25 March 2022 was the main contributing factor to his injury.
The respondent asserts that this is not a ‘nature and conditions’ claim, and that the frank incident that the applicant pleads as occurring on 25 March 2022 is not supported by the medical evidence on which he relies.
The ‘nature and conditions’ of employment are often relied upon in workers compensation claims, and frequently the use of the term is not helpful. It has been commented on a number of occasions, including by Deputy President Roche in Topliss v Coles Group Ltd trading as Coles Logistics[40] at [65]:
“The general reference by the parties and the Arbitrator to a ‘nature and conditions’ injury was misleading and unhelpful. The phrase ‘nature and conditions’ is not a term used in the NSW workers compensation legislation. In Mirkovic v Davids Holdings Pty Ltd(1995) NSWCCR 656 Neilson CCJ said (at 667):
‘The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’. It is used in this place [the Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16’.”
[40] [2009] NSWWCCPD 70.
The respondent submits that the applicant’s credit is in issue and that his evidence as to the occurrence of the injury cannot be relied upon because he has not revealed to doctors the extent of his pre-injury problems with his lumbar spine, he has brought previous workers compensation proceedings in Victoria against his employer, a company of which he was a director, and that he has brought previous proceedings in NSW, the evidence in which included his brief statement dated 3 February 2023 attached to the Reply. The respondent asserts that when those previous proceedings were discontinued, a further report was obtained from Dr Gehr to support the current proceedings, and further statements produced by the applicant.
The respondent also points out that the circumstances of the applicant’s current claim are similar to those of a previous incident in Victoria when Mr Thurlow injured his back in 2007 – 2008 when driving a tractor across rough ground.
Apart from the applicant’s statement dated 3 February 2023 I have not been taken to any other material lodged in previous proceedings in NSW, nor have the ARD or Reply on those proceedings been lodged in the current proceedings.
I accept that Mr Thurlow has understated to doctors, in particular Dr Gehr and Dr Spittaler, the extent of the pre-injury problems he had with his lumbar spine.
In the current proceedings, Mr Thurlow has given statement evidence of injuries suffered to his back in July 2003 and March 2008 whilst employed by AHC (VIC) Pty Ltd, the company of which he was a director. There are no details of what the applicant may have received from any claim(s) made on the insurer of his employer following those injuries, apart from
Mr Thurlow’s statement that to the best of his knowledge he did not receive pay outs for claims made. Claim numbers are supplied in respect of each incident.I note there is material attached to the Reply, namely:
(a) a statement of the applicant dated 4 December 2018 which refers to injuries in January 2008 to the right arm and shoulder area, and also apparently to the back (at [21] and [25]), although this is seems to be a passing reference,[41] and
(b) an unsigned WorkCover Queensland Worker’s Injury Claim Form in respect of a lower back injury while employed by AGH (Vic) Pty Ltd while “Lifting grape bin and tractor back into it” at “Cape Home Vineyard”.[42]
[41] Reply p 28.
[42] Reply p 36.
Apart from reference to a back injury, acknowledged by the applicant, I do not see that this material either hinders or advances the applicant’s case.
The applicant did acknowledge in his pre-employment medical dated 23 October 2019, referred to above at [58], previous work related injury to neck and lower back.[43]
[43] Reply p 3.
This case must however be determined on the totality of the evidence before the Commission. I accept that the applicant is not relying on a so called ‘nature and conditions’ claim described in [138] above. However, I do accept that something happened to the applicant in the course of his work on 25 March 2022 to cause him to cease work and consult Dr Majeed on 28 March 2022. That incident is against a background of the previous problems which Mr Thurlow had with his lumbar spine that caused him to be cautious to avoid re-injuring his neck and back following his previous injuries, and to speak to the depot supervisor James, and another manager Matt, on 17 March 2022 of problems he was having with the positioning of his driver’s seat. At that stage, Mr Thurlow says that the seat of the bus was causing him neck pains.[44]
[44] See [18] of statement dated 11 September 2023, ARD p 3.
There are no statements from either James of Matt to gainsay the applicant’s evidence in this regard.
I think that there is sufficient evidence to find that the applicant did suffer an aggravation etc of the pre-existing disease in his lumbar spine on 25 March 2022 in the course of his employment as a bus driver for the respondent. I accept his uncontradicted evidence that he was experiencing problems with the bus seat and spoke to other employees of the respondent about it, both prior to and on that day.
I think that Mr Thurlow did see Dr Majeed on 11 March 2022 for neck pain, not back pain. This is evident from the consultation entry of that day, and the results recorded of the MRI scans dated 25 June 2018 and 5 April 2022, the latter requested on 11 March 2022.
The applicant experienced an increase in his symptoms on 25 March 2022. The applicant had worked as a bus driver for the respondent since “around October 2019” (see [1] of his statement dated 11 September 2023), working on average 32 hours a week over a five day period.
Notwithstanding his reticence, either deliberate or more likely and understandably unconscious, in telling doctors about his pre-injury back condition, I do not draw any adverse inference against the applicant in respect of his credit. Similarly, I do not think the fact that the applicant had brought previous proceedings in NSW in respect of his back injury in the employment of the respondent, the details of which are not in evidence, should cause me to draw an adverse inference in respect of his credit. The applicant did reveal to his prospective employer in January 2019 that he had previous work related injury to his neck and lower back.
The medical evidence which is of most assistance in demonstrating that Mr Thurlow did suffer aggravation etc of the pre-existing disease in his lumbar spine is that of Dr Spittaler. In his report dated 6 September 2022 the doctor said that he was sure that Mr Thurlow had some prior disc degeneration “…but this was asymptomatic on the worker’s account and is likely to have remained asymptomatic”. This was on the basis of the applicant’s history that he had no lower back symptoms prior to March of that year, which I suppose on one view could be correct on the basis of the applicant being able to engage in his occupation of a bus driver for the respondent since October 2019, and not experiencing symptoms in his neck until about 17 March 2022.
Dr Spittaler was then supplied with the file of 145 pages, largely comprised of Mr Thurlow’s general practitioner’s notes, and produced a supplementary report dated 3 May 2023. He said that “This presents a very different history to the one provided to me by the claimant.” Dr Spittaler said that when he saw Mr Thurlow in September 2022 , based on his symptoms and the MRI dated 5 April 2022 that he viewed personally, he did not believe that:
“…the worker needed surgery. Unless there has been some further injury or change in the worker’s symptoms or a change on his MRI, I don’t think that there will be any value in offering this man surgery.”
Dr Spittaler found no difference in the MRI performed on 5 April 2022 compared with previous CT and MRI imaging, and that:
“On that basis, and particularly with regard to the multiple consultations and acupuncture treatment that is documented in the general practitioner’s notes stretching back as far as 2008, then I think that it is unlikely that there has been a significant aggravation from the incident last year.”
Dr Spittaler here concedes, after seeing all of the material to which he has been referred, that there has been an aggravation, albeit not significant, of the applicant’s condition. The applicant submits that such an aggravation as is found by Dr Spittaler is sufficient to show that employment was the main contributing factor to the aggravation. I think that that is correct. The fact that there has been no change in the pathology shown on the radiological investigations does not mean that there has not been an aggravation etc of the pre-existing condition.
Dr Spittaler goes on to say that it is correct to say that the applicant’s current incapacity relates to the pre-existing state of the back rather than any injury on 22 March 2022.
In his earlier report Dr Spittaler said that he would consider that the aggravation/exacerbation in the lumbar spine “…has resolved when the worker’s symptoms subside.” Dr Spittaler seems to have revised his opinion on incapacity having regard to the long documented history of the applicant’s back problems.
Dr Gehr says of the current diagnosis of the applicant’s back that he would characterise it as a minor aggravation rather than what Dr Spittaler found to be an exacerbation. That diagnosis was against the background given to him of occasional lower back pain by the applicant.
Dr Ferch expresses the opinion in his report dated 23 February 2023 that Mr Thurlow’s left lower limb pain was precipitated by his work injury and the symptoms have persisted. In his supplementary report dated 1 November 2023, Dr Ferch says that Mr Thurlow developed low back and left lower limb pain after his back was jarred whilst driving a bus:
“He was not limited by low back symptoms prior to this incident and the incident was repeated on a number of occasions aggravating his symptoms Therefore, his employment was the main contributing factor to Mr Thurlow developing his low back symptoms.”
There must be a focus on what was the main contributing factor to the applicant’s injury, that is the aggravation etc of the pre-existing disease. The applicant had worked for the respondent since October 2019 without incident until what occurred on 25 March 2022 caused him to cease work and consult Dr Majeed on 28 March 2022 for low back pain.
In AV v AW[45] Deputy President Michael Snell said at [78] of “main contributing factor” after reviewing case law that:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[45] [2020] NSWWCCPD 9.
In my view, having regard to the medical and lay evidence above referred to, the applicant’s employment with the respondent was the main contributing factor to the aggravation etc of the pre-existing degenerative disease in his lumbar spine.
Cervical spine
Dr Ferch is in the best position to assess if the applicant’s employment was the main contributing factor to the applicant’s cervical spine symptoms. He rejects this in his report dated 24 October 2023 saying:
“Mr Thurlow had a long history of cervical spine symptoms for which he had undergone multiple surgeries. These pre-dated the incidents and the employment with the Respondent was not the main contributing factor to his cervical spine symptoms.”
Dr Spittaler notes in his report dated 6 September 2022 that the applicant had not been able to work for a period of approximately six weeks after his cervical surgery in June 2022, but that he had recovered from that by the time of his examination of Mr Ferch on
26 August 2022.Notwithstanding the opinion of Dr Gehr that the applicant’s cervical spine injury was an aggravation, I accept the opinion of Dr Ferch that the applicant’s employment with the respondent was not the main contributing factor to his cervical symptoms.
Incapacity
On 6 October 2023 Dr Ferch found that Mr Thurlow’s ability to work has been limited by his low back pain and left lower limb pain, and that he was currently not working. Dr Gehr found that the applicant had zero capacity for his pre-injury occupation, but that was also having regard to his finding that the cervical spine had been aggravated on 25 March 2022 which I find is not the case. Dr Spittaler found initially, following his assessment of the applicant on 26 August 2022, that Mr Thurlow probably could perform some sedentary work for restricted hours potentially for four hours a day three days a week in relation to the lower back injury. He was not fit to perform his normal duties as a bus driver. He considered that the aggravation “…has resolved when the worker’s symptoms subside”.
In his supplementary report Dr Spittaler said that it is more likely that not that the applicant’s current incapacity relates to the pre-existing state of his back rather than the injury on
22 March 2022. He said that Mr Thurlow would be ill advised to return to work as a bus driver because of his unrelated cervical condition. That would preclude him long term from working as a bus driver, quite apart from any lumbar symptoms.Weekly benefits are claimed in the ARD from 28 September 2023 pursuant to s 37 of the 1987 Act. That is, in the second entitlement period in weeks 14 to 130, meaning the aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.[46]
[46] Section 32A definition of second entitlement period.
Section 37(3) of the 1987 Act provides for weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates:
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings, and
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
The respondent adopts that applicant’s submissions on incapacity in the event that there is a finding for the applicant on injury and incapacity.
As a result of his lumbar spinal injury the applicant Dr Spittaler found in his first report dated 6 September 2022, following an examination of Mr Thurlow on 26 August 2022, that he was fit for sedentary work, not driving buses and with a lifting restriction of 5 kg. Dr Ferch saw the applicant on 6 October 2022. In his report dated 24 October 2023, Dr Ferch agreed with
Dr Spittaler’s opinion that the applicant could undertake sedentary work, although he said that it would be reasonable for Mr Thurlow to continue working in a sedentary capacity, or as a bus driver, if he was able to tolerate the low back and left limb pain. As noted above,
Dr Ferch found that the condition in the cervical spine was not aggravated on 25 March 2022.Dr Spittaler in his supplementary report dated 3 May 2023 accepted a proposition put to him at [4] that the applicant’s current incapacity related to the pre-existing state of his back rather than any injury on 22 [sic, 25] March 2022.
When Dr Gehr saw the applicant on 10 January 2023 he noted that he was doing office work and was of the opinion that that he had no capacity to return to bus driving.
In his statement dated 11 September 2023 the applicant says that on a day-to-day basis he experiences pain in his neck, back and left leg. Pain in the neck should not be taken into account for the purpose of assessing the applicant’s capacity to work in suitable employment.
I accept that the applicant continues to experience symptoms in the lumbar spine as a result of the aggravation etc which occurred on 25 March 2022.
The applicant submits that he is fit for suitable employment for four hours a day, three days a week. Having regard to the abovementioned medical evidence and the evidence of the applicant, I find that for the purpose of s 37 of the 1987 Act, the applicant has current work capacity to work in suitable employment for 12 hours a week.
Mr Ferch has not returned to work since the date from which compensation is claimed, and is therefore entitled to weekly payments at the rate of 80% of his agreed PIAWE less his current weekly earnings.
“Current weekly earnings” (emphasis in original) are defined in cl 8 of Sch 3 to the 1987 Act as whichever of the following is the greater amount:
“(a) the worker’s actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
As at the date of injury the applicant’s PIAWE were agreed at $1,134.68, which subsequently increased due to indexation to the agreed current figure of $1,230.
The applicant submits that the amount that he can earn in suitable employment should be calculated with reference to the hourly rate that he was earning in his employment with the respondent. Mr Thurlow was working 32 hours a week, meaning that his current hourly rate would be $38.43. For a 12 hour week that is $461.16.
I assume that the applicant’s agreed current PIAWE of $1,230 applies from 1 October 2023. The applicant claims weekly benefits from 28 September 2023. I will use this figure in calculating the applicant’s entitlement to weekly benefits.
When the sum $461.16 is deducted from 80% the agreed current PIAWE of $1,230, a figure of $522.84 is obtained.
There will be an award in favour of the applicant at the rate of $522.84 per week from 28 September 2023 to date and continuing pursuant to s 37 of the 1987 Act.
If there is to be an adjustment for the period from 28 September 2023 to 1 October 2023, and the parties cannot agree on what is the correct figure for this short period, they may approach the Commission.
Surgery
The applicant claims the cost of surgery recommended by Dr Ferch, who says that it is “reasonable and necessary” (not the statutory test) as a result of the applicant’s left lower limb pain precipitated by his work injury and the persistence of symptoms.
Dr Gehr recommends the surgical procedure as recommended by the treating neurosurgeon, Dr Ferch.
Dr Spittaler in his supplementary report dated 3 May 2023 said that when he saw Mr Thurlow in September 2022 he did not believe that he needed surgery. He said: “Unless there has been some further injury or change in the worker’s symptoms or a change on his MRI, I don’t think that there will be any value in offering this man surgery.”
Section 60(1) of the 1987 Act relevantly provides that if, as a result of an injury received by a worker, is it reasonably necessary that any medical or related treatment be given, the worker’s employer is liable to pay for the cost of that treatment.
In Diab v NRMA Ltd,[47] Deputy President Roche at [88] listed relevant matters, according to the criteria of reasonableness to be considered in respect of medical treatment, as including, but not necessarily limited to the following:
(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.
[47] [2014] NSWWCCPD 72 (Diab).
In Murphy v Allity Management Services Pty Ltd[48] Deputy President Roche discussed at [57] – [58] the requirement of reasonable necessity for surgery in the context of the facts of that case. He said:
“57. …a condition can have multiple causes (Migge v Wormald Bros Industries Ltd(1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters(1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd(1979) 53 WCR 167; ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[48] [2015] NSWWCCPD 49.
The applicant’s submissions on the reasonable necessity for surgery are set out at [63] above. The respondent did not make submissions on this issue.
In my view the injury suffered by the applicant on 25 March 2022 materially contributed to the reasonable necessity for surgery on his lumbar spine. Mr Thurlow had worked for the respondent since about October 2019, being cautious and taking care not to re-injure his back since his previous injuries. Dr Ferch notes Mr Thurlow was not limited in his employment with the respondent by low back symptoms, although as I said, he was proceeding in that employment with caution.
Dr Gehr endorses the reasonable necessity for surgery. Dr Spittaler does not, expressing the opinion that he did not think that there would be any value in offering Mr Thurlow. This is in contrast with the view of the treating surgeon, Dr Ferch who has operated on the applicant’s cervical spine on two occasions, with apparent good result according to Dr Ferch following the second surgery in June 2022. Dr Ferch notes that the applicant’s back symptoms have failed to conservative treatment, and that there is a 70% chance that surgical treatment will substantially improve Mr Thurlow’s lower limb pain.
Deputy President Roche noted at [89] in Diab that with respect to the actual or potential effectiveness of the treatment proposed:
“… 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.”
The applicant has not achieved relief from conservative treatment of his back. Surgery gives him a significant chance of improving the symptoms in his leg.
I find that the injury sustained by the applicant to his lumbar spine materially contributed to the need for surgery.
SUMMARY
The applicant sustained injury to his lumbar spine in the form of aggravation, acceleration, exacerbation or deterioration of a of a disease deemed to have occurred on 25 March 2022.
The applicant’s employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
Award for the respondent in respect of the applicant’s claim for injury to the cervical spine deemed to have occurred on 25 March 2022.
As a result of injury on 25 March 2022 the applicant was partially incapacitated for work.
The applicant is fit for suitable employment for four hours a day, three days a week.
The applicant’s PIAWE as at the date of injury were $1,134.68.
The applicant’s current PIAWE are $1,230.
The applicant’s current weekly earnings are $461.16.
The respondent is to pay the applicant $522.84 per week from 28 September 2023 to date and continuing pursuant to s 37 of the 1987 Act.
The surgery recommended by Dr Ferch in his quotation for surgery on the lumbar spine dated 6 October 2022 is reasonably necessary as a result of injury on 25 March 2022.
The respondent is to pay for the costs of and incidental to such surgery.
The parties have leave to approach the Commission if there is to be an adjustment to the applicant’s entitlement to weekly benefits for the period 28 September 2023 to 1 October 2023.
- AGLC
- Thurlow v CDC NSW Pty Ltd [2024] NSWPIC 110
- Case
- [2024] NSWPIC 110
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether Thurlow had sustained an injury to his lumbar spine on 25 March 2022, and if his employment as a bus driver was a substantial or main contributing factor to this injury. The court had to determine whether the applicant’s injury to his lumbar spine arose out of or in the course of his employment, and whether the employer’s contention that Thurlow’s history of prior back issues undermined his claim was valid. Additionally, the court had to consider the validity of Thurlow's claim regarding his cervical spine injury.
The court found that Thurlow had indeed sustained an injury to his lumbar spine on 25 March 2022, and that his employment as a bus driver was the cause of this injury. The court accepted that the applicant’s employment was a substantial contributing factor to the injury and that it was the main contributing factor to the aggravation of a pre-existing condition in his lumbar spine. The court rejected Thurlow's claim for injury to his cervical spine, noting that there was no medical support for the assertion that he sustained a cervical spine injury on the date in question. The court also determined that Thurlow's prior history of back pain, though not severe, did not preclude him from claiming compensation for the injury sustained on 25 March 2022. The court awarded Thurlow weekly benefits for the injury to his lumbar spine and the cost of the recommended surgery, but denied his claim for injury to the cervical spine.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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