Tzivanopoulos v Endeavour Energy
[2022] NSWPIC 23
•18 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tzivanopoulos v Endeavour Energy [2022] NSWPIC 23 |
| APPLICANT: | George Tzivanopoulos |
| RESPONDENT: | Endeavour Energy |
| MEMBER: | Anthony Scarcella |
| DATE OF DECISION: | 18 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Section 4(b)(ii) of the 1987 Act injury to the cervical spine disputed; entitlement to weekly benefits disputed; proposed surgery to the cervical spine disputed; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, State Transit Authority v El-Achi, AB v AW, Jones v Dunkel, Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held- the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the cervical spine within the meaning of section 4(b)(ii) of the 1987 Act arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019; the applicant has had no current work capacity from 9 January 2019 within the meaning of section 32A of the 1987 Act; the C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 9 January 2019 within the meaning of section 60 of the 1987 Act; the respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the cervical spine within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019. 2. The applicant has had no current work capacity from 9 January 2019 within the meaning of s 32A of the Workers Compensation Act 1987. 3. The C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 9 January 2019 within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 4. The applicant’s claim in respect of a consequential/secondary psychological condition as a result of the alleged cervical spine injury deemed to have occurred on 9 January 2019 is discontinued. 5. The respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019 as follows: (a) Pursuant to s 36(1) of the Workers Compensation Act 1987: $2,145.30 per week from 10 January 2019 to 31 March 2019. (b) Pursuant to s 37(1) of the Workers Compensation Act 1987: $2,177.40 per week from 11 April 2019 to 30 September 2019. (c) The respondent is to be given credit for any payments made. (d) Liberty to apply within 14 days in relation to the calculation of weekly benefits. 6. The respondent is to pay for the costs of and ancillary to the C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong at the gazetted rates. 7. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury deemed to have occurred on 9 January 2019 under s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr George Tzivanopoulos, is a 48-year-old man who was employed by the respondent, Endeavour Energy (Endeavour) as contestable works engineer.
Mr Tzivanopoulos alleged that he suffered an aggravation, acceleration, exacerbation or deterioration of a disease process to his cervical spine resulting in the development of symptoms in his neck and upper extremities due to the nature and conditions of his employment with Endeavour between 28 May 2011 and 9 January 2019.
On 18 March 2019, Mr Tzivanopoulos lodged a claim for weekly benefits and medical expenses under the Workers Compensation Act 1987 (the 1987 Act) with Endeavour.[1]
[1] Application to Resolve a Dispute at pages 15-23.
On 1 July 2019, Endeavour issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury within the meaning of ss 4 and 9A of the 1987 Act; denying an entitlement to weekly benefits compensation under s 33 of the 1987 Act; and reasonably necessary medical and related treatment expenses as a result of injury within the meaning of ss 59 and 60 of the 1987 Act.
Mr Tzivanopoulos, through his lawyers, requested a review of the decision contained in Endeavour’s dispute notice dated 1 July 2019 under s 287A of the 1998 Act.
On 19 February 2020, Endeavour issued a dispute notice under s 287A of the 1998 Act maintaining its decision to deny liability and also disputed an entitlement to lump sum permanent impairment compensation under s 66 of the 1987 Act.[2]
[2] Application to Resolve a Dispute at pages 55-65.
On 27 May 2020, Endeavour issued a dispute notice under s 78 of the 1998 Act maintaining its dispute.[3]
[3] Application to Resolve a Dispute at pages 35-44.
On 2 November 2020, Endeavour issued a dispute notice under s 78 of the 1998 Act maintaining its declinature of liability and declining liability for a proposed right C7 perineural injection.[4]
[4] Application to Resolve a Dispute at pages 45-54.
On 15 June 2021, Endeavour issued a dispute notice under s 78 of the 1998 Act maintaining its declinature of liability and declining liability for a proposed right C7 perineural injection.[5]
[5] Application to Resolve a Dispute at pages 66-67.
On 15 June 2021, Endeavour issued a dispute notice under s 287A of the 1998 Act maintaining its declinature of liability and declining liability for a C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong.[6]
[6] Application to Resolve a Dispute at pages 68-76.
On 15 September 2021, Endeavour issued a dispute notice under s 287A of the 1998 Act maintaining its declinature of liability.[7]
[7] Endeavour's Application to Admit Late Documents at pages 1-11.
Mr Tzivanopoulos lodged an Application to Resolve a Dispute (ARD) dated 25 August 2021 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming weekly compensation from 9 January 2019 and ongoing under ss 36 and 37 of the 1987 Act; medical and related expenses under s 60 of the 1987 Act, including a finding that the C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong is reasonably necessary treatment as a result of the injury sustained in the course of his employment with Endeavour on 9 January 2019.
ISSUES FOR DETERMINATION
The parties agreed that the following issues remained in dispute:
(a) whether Mr Tzivanopoulos suffered an aggravation, acceleration, exacerbation or deterioration of any disease process to his cervical spine deemed to have occurred on 9 January 2019 within the meaning of s 4(b)(ii) of the 1987 Act;
(b) whether the C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong is reasonably necessary treatment as a result of the injury deemed to have been sustained by Mr Tzivanopoulos on 9 January 2019 within the meaning of s 60 of the 1987 Act;
(c) whether Mr Tzivanopoulos is entitled to weekly payments of compensation for total or partial incapacity within the meaning of s 33 of the 1987 Act arising from his alleged cervical spine injury from 9 January 2019 and ongoing. If so, did he have a current work capacity to work in suitable employment within the meaning of s 32A of the 1987 Act during the period claimed? The extent and quantification of his entitlement to weekly payments of compensation within the meaning of ss 35, 36 and 37 of the 1987 Act, and
(d) whether Mr Tzivanopoulos’ medical and related treatment expenses are reasonably necessary as a result of injury within the meaning of ss 59 and 60 of the 1987 Act.
Matters previously notified as disputed
The issues in dispute were notified in the dispute notices referred to above.
Matters not previously notified
No other issues were raised.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a conciliation conference/arbitration by telephone on 13 October 2021. Mr James McEnaney of counsel appeared for Mr Tzivanopoulos, instructed by Mr Stephen Matthews, solicitor and Mr David Saul of counsel, instructed by Ms Laura Beattie, solicitor appeared for the respondent.
During the conciliation phase the parties agreed as follows:
(a) Mr Tzivanopoulos discontinued the claim in respect of a consequential/secondary psychological condition as a result of the alleged cervical spine injury deemed to have occurred on 9 January 2019;
(b) Mr Tzivanopoulos’ pre-injury average weekly earnings (PIAWE) were $2,859.51, which exceeded the statutory maximum and if successful, he is limited to the relevant statutory maximums over the period of weekly benefits compensation claimed, and
(c) a general order under s 60 of the 1987 Act is appropriate if Mr Tzivanopoulos’ claim is successful.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD dated 25 August 2021 and attached documents;
(b) Reply to ARD (Reply) dated 15 September 2021 and attached documents, and
(c) Application to Admit Late Documents (AALD) lodged by Endeavour dated 16 September 2021 and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence from or to cross-examine any witness.
Mr George Tzivanopoulos’ evidence
In evidence, there is a statement by Mr Tzivanopoulos dated 18 February 2021.[8] I will now refer to the relevant parts of that statement.
[8] ARD at pages 1-9.
Mr Tzivanopoulos stated that he had been employed on a full-time basis with Endeavour as an electrical engineer since 28 May 2011. He ceased work with Endeavour on 9 January 2019 and has been unable to return to the workforce ever since.
Mr Tzivanopoulos stated that prior to being employed by Endeavour, he was in good health and had not experienced any pain in his neck, shoulders or upper extremities. Before commencing his employment with Endeavour, he underwent a comprehensive pre-employment medical assessment and passed the medical examination without any issues.
Mr Tzivanopoulos stated that his role as an electrical engineer with Endeavour involved him working at his desk for, at least, 90% of his working day. The workstation set-ups were basic and not “ergonomically conscious”.[9]
[9] ARD at page 2 at [15].
Mr Tzivanopoulos stated that, in 2013, he began to experience pain in his neck and shoulders whilst at work. At the time, work involved a large volume of complex projects. He was seated at a desk operating a computer with two monitors and a telephone for prolonged periods of time. As a result of his complaints of pain, Endeavour arranged for an ergonomic assessment of his workstation. It took a long time for Endeavour to conduct the assessment and implement its recommendations.
Mr Tzivanopoulos stated that, following the ergonomic assessment, Endeavour adjusted the monitor heights at his desk, moved his telephone closer to him, provided him with another mouse, a new chair and a foot rest from another workstation. He remained at the same desk, which was not adjustable and its height was uncomfortable. However, the chair had limited adjustability and was still very uncomfortable. He raised these issues with his manager, Mr Han Phan, who informed him that he was provided with what was recommended in the ergonomic assessment. At a later point in time, he was provided with a document holder but it was inadequate because of the size of the documents he was required to examine. He was also provided with a telephone head set sometime later. He was not offered a sit/stand desk after the ergonomic assessment.
Mr Tzivanopoulos stated that, because he did not want to be seen as a troublemaker, he made do with what he was given even though it was inadequate. He had to constantly refer to hardcopy materials over multiple documents at his desk that required the constant moving of his head and neck. He did not want to lodge a workers compensation claim because he did not wish to jeopardise his employment.
Mr Tzivanopoulos stated that, after spending long periods of time at his workstation, he experienced increasing pain in his neck, upper back and shoulder areas. He had not experienced such pain before the commencement of his employment with Endeavour.
Mr Tzivanopoulos stated that taking regular rest breaks was difficult and unrealistic given his workload. He did try to get up and walk to the printer or confer with stakeholders in person rather than by email or telephone, just so that he could get up from his workstation. However, his ability to do so was limited. He was under a lot of pressure and he had to keep working hard to try and stay on top of things. He was working full days non-stop. His contracted hours were between 8.30am and 5.30pm but he often worked extra hours.
Mr Tzivanopoulos stated that, in 2013, he experienced pain in his neck and trapezius as well as a tingling sensation in his right hand. He experienced migraines and difficulty concentrating because of his constant neck and shoulder pain. He underwent chiropractic treatment with Health Plus Chiropractic and an X-ray of his thoracic spine. He paid for the treatment. The chiropractic treatment seemed to relieve his symptoms and he was able to keep working despite the continuing pain.
Mr Tzivanopoulos stated that, in 2014, he experienced a further increase in his symptoms and underwent chiropractic treatment with Dr Ken McAviney. The treatment was helpful, in that, it provided some relief from his symptoms.
Mr Tzivanopoulos stated that, in or about May 2017, he underwent further chiropractic treatment with Dr McAviney because of another flare-up of pain. Dr McAviney recommended the use of a sit/stand desk. Mr Tzivanopoulos raised the provision of a sit/stand desk with Mr Christopher Charman (incorrectly referred to as Charmers) after his presentation at the Endeavour annual safety seminar. Mr Charman inspected Mr Tzivanopoulos’ workstation and advised him that a sit/stand desk was an option that would be of benefit and recommended that he approach his manager.
Mr Tzivanopoulos stated that it was at about this time that Mr Charman informed him that he could formally record a ‘near miss’ form in respect of his injuries. However, as he had already notified his concerns to his manager and was concerned about the form being visible to the whole organisation, he did not lodge the form. He exchanged emails with Mr Charman on or about 30 August 2017.
Mr Tzivanopoulos stated that Mr Phan gave him permission to obtain an additional platform for his desk which would make it a sit/stand desk. As a consequence, another ergonomic assessment of Mr Tzivanopoulos’ workstation took place on about 11 September 2017.
Mr Tzivanopoulos stated that he experienced a further flare-up in April 2018 and another in September 2018. The symptoms had increased in severity over the years. In 2018, he was experiencing increased pain, migraines and difficulty concentrating, which made it very difficult for him to cope with his work. He continued to self-manage as best as he could but he was struggling to manage his work and his injuries.
Mr Tzivanopoulos stated that Endeavour put him on a Performance Improvement Plan (PIP) which came into effect in about June 2018. Issues were raised about the adequacy of his work performance. He had always been able to manage his workload even though it had been extremely high but he felt he was being targeted in 2018, which made it even harder to keep up with his work. He took extended leave from 6 July 2018 to 10 September 2018 because he had been directed to take leave, having accumulated, at least, 10 weeks leave. He also felt that the break would be good for him because of his ongoing pain, increased workload and the constant flare-ups he was experiencing.
Mr Tzivanopoulos stated that, when he returned from leave, his workload was immense. A lot of work was dumped on him with major issues that had not been addressed whilst he was on leave. He worked a lot of hours non-stop to try and rectify the issues that had arisen. He was having difficulties with his employment because of his injuries. His condition had been deteriorating steadily in 2018 and he was experiencing more and more difficulties managing his work. Endeavour was placing increased pressure on him, which he found difficult to cope with in addition to the pain he was experiencing. He felt that Endeavour had changed the rules surrounding the delegation of work that resulted in an increased workload for him. He had to work even harder and for longer hours in order to comply with the PIP and this caused even more aggravation of his injuries. At no time did Endeavour make any attempts to reduce his workload, despite his pain.
Mr Tzivanopoulos stated that by December 2018, the pain had become particularly unmanageable and he was no longer responding to the conservative treatment that enabled him to keep working.
Mr Tzivanopoulos stated that, on or about 17 December 2018, Endeavour issued him with a final warning and a final review was scheduled to take place on 15 January 2019. He continued working as best as he could until 9 January 2019, after which he did not return to work because of his injuries that had been deteriorating for quite some time.
Mr Tzivanopoulos stated that, in about January 2019, he sought treatment at Wentworthville Medical Centre and was referred to a spinal surgeon, Dr Anil Nair, who recommended that he undergo a cortisone injection, which took place on 5 March 2019. Dr Nair later recommended that he undergo surgery to his neck.
Mr Tzivanopoulos stated that it was only after ceasing work and consulting with his doctors that he felt he could put in a workers compensation claim without risk of further reprisal from Endeavour. On 18 March 2019, he formally lodged a workers compensation claim in relation to his ongoing injuries. On 27 March 2019, Endeavour admitted provisional liability for the payment of expenses but not for loss of wages. On 28 March 2019, Endeavour issued him with a show cause letter in respect of the potential termination of his employment.[10] His employment with Endeavour was subsequently terminated.
[10] ARD at pages 77-80.
Mr Tzivanopoulos stated that, on 10 May 2019, he underwent a medical examination with Dr Neil Cochrane at the request of Endeavour. On 1 July 2019, Endeavour denied liability for his claim based on the contents of Dr Cochrane’s report.
Mr Tzivanopoulos referred to the statements of Ms Maha Gopala and Mr Han Phan. He denied being argumentative and disrespectful to his manager, to his peers and to Endeavour’s customers. Although he believed that the PIP requirements were unreasonable and unworkable, he made a genuine effort to ensure that he did his best to meet the requirements of the PIP.
Mr Tzivanopoulos stated that Mr Phan was always aware that he had an injury and was experiencing pain at work because he discussed it with him on numerous occasions after he had returned from leave in September 2018. Mr Phan was aware of the increased workload but provided no assistance.
Mr Tzivanopoulos stated that he made verbal reports of his pain over the years to his managers, including Mr Phan and one of his colleagues, Mr Simon Barkho.
Mr Tzivanopoulos stated that he continued to receive treatment from his treating doctors. He identified the medication he had taken. He was referred to Dr Bisham Singh on or about 18 April 2019, who recommended a C4-C7 cervical decompression and fusion. As he had concerns about the surgery recommended by Dr Singh, he requested a referral to another surgeon for a second opinion. On 4 July 2019, he was referred to Dr Peter Khong and consulted him shortly afterwards. Dr Khong referred him for injections, which he underwent on or about 25 February 2020. The injections only provided him with minor temporary relief of his neck and shoulder pain. He underwent physiotherapy and took medications without sufficient relief of the pain.
Mr Tzivanopoulos stated that, on 13 May 2020, he consulted Dr Khong, who recommended that he undergo a C6/7 anterior cervical discectomy and fusion. Mr Tzivanopoulos would like to undergo that procedure and believes that it will provide him with the best chance of recovery.
Mr Tzivanopoulos stated that, on 23 December 2020, he underwent a cortisone injection into his neck for pain relief. It only provided him with some minor temporary relief. He again consulted Dr Khong in January 2021. Dr Khong indicated that physiotherapy would be beneficial whilst he was waiting to undergo surgery. However, he could no longer afford to pay for physiotherapy.
In evidence, there is a statement by Mr Tzivanopoulos dated 19 March 2021.[11] The statement related to the issue of an ABN to Mr Tzivanopoulos and its subsequent cancellation. It appeared to have no relevance to the issues for my determination and neither party referred to it. Accordingly, I will do likewise.
[11] ARD at pages 10-11.
In evidence, there is a supplementary statement by Mr Tzivanopoulos dated 13 April 2021.[12] I will now refer to the relevant parts of that statement.
[12] ARD at pages 12-14.
Mr Tzivanopoulos stated that he had worked at the same workstation during the entire period of his employment with Endeavour. He described his desk as a corner desk of approximately 900mm in depth. He required a deep desk so that he could work off large drawings, which he would set up on the long arms of the corner desk. He had two monitors set up in the corner of the desk and they were close to 900mm away. He wore glasses to view the computer monitors but did not require them to view documents he held or that were on his desk. As a consequence, when he was working mostly off hard copies, he would read the document on his desk and then lean forward or poke his neck forward to bring his eyes closer to the monitors when working off his computer. Conversely, when he was working mostly off his computer monitor, he wore his glasses and then removed them to view hard copy documents.
Mr Tzivanopoulos stated that his work involved the constant review of plans and diagrams of electrical networks. A common task involved looking at a drawing of an electrical layout of the grid or a building and then comment on it by email. Such tasks involved him looking up and down from the document and poking his head forward repeatedly. When working off drawings, he used to pull up his chair close to his desk and work off a document “somewhat hunched over”,[13] then lift his head up and type comments into the computer. This involved a constant head up/head down motion.
[13] ARD at page 12 at [12].
Mr Tzivanopoulos stated that he used to take regular lengthy telephone calls. He could not use a speaker phone and initially, he was not provided with a headset. He used to push the telephone handset into his right shoulder with his ear and head and worked this way as best as he could. Following these telephone calls, he would notice that his neck ached and on occasions, felt pins and needles coming down the side of his head and neck into his shoulders. Mr Tzivanopoulos explained:
“I could ‘dose response’ the problem with the telephone by switching to my left ear and shoulder, and this would simply let the pain in the right side dissipate while the left side began to hurt. I would switch back and forward.”[14]
[14] ARD at page 13 at [15].
Mr Tzivanopoulos stated that in about 2013, he noticed that, by mid-morning, his neck became painful. He would take a break or an early lunch and walk around. This provided him with relief. Over time, the pain worsened and he found that he was less able to make it go away by “walking it off”.[15] He noticed that his neck pain was relieved over the weekends and returned during the working week. He made various complaints to Endeavour, including Mr Charman and Mr Phan.
[15] ARD at page 13 at [16].
Mr Tzivanopoulos stated that, whilst at work with Endeavour over the years, his neck pain deteriorated and became very painful but manageable with treatment. By about December 2018, his neck pain was constant, as was the numbness extending into his hands and arms. He was unable to concentrate and avoided some work tasks because they required more head and neck movement. He found that he had to take constant rest breaks every 20 minutes and would get up and walk away from his desk. He was barely able to sleep at night because of the pain and went into work feeling exhausted each day.
Mr Tzivanopoulos stated that he accepted that his work performance deteriorated towards the end of his employment with Endeavour and that they may have been disappointed with his performance at work. At times, he felt as if he was operating at half of his ordinary capacity but did the best he could.
Worker’s injury claim form
In evidence, there is a worker’s injury claim form (the claim form) signed by Mr Tzivanopoulos and dated 18 March 2019.[16]
[16] ARD at pages 15-23.
In the claim form, Mr Tzivanopoulos stated the date and time of injury to be 9 January 2019 at 5.30pm. He stated that he first noticed the condition on 14 December 2018 and that he stopped work on 9 January 2019.
In the claim form, Mr Tzivanopoulos described the tasks he was performing when injured as, “Office based tasks. Computer use such as email, review notes. Review of drawing [sic, drawings] and documentation.”[17] He recorded being at his desk when he was injured.
[17] ARD at page 17.
In the claim form, Mr Tzivanopoulos described his injury as, “Neck pain, numbness in right and left arm which would not go away after resting.”[18]
[18] ARD at page 17.
In the claim form, Mr Tzivanopoulos described his injuries/condition and affected body parts as, “Neck, shoulders left + right. L + R arm and hand/fingers numb feeling, pain, pins and needles. Tense muscle pain.”[19]
[19] ARD at page 17.
In the claim form, Mr Tzivanopoulos recorded that he reported his injury/condition to Mr Eugene Lorenzo, acting manager. The date of reporting was left blank on the claim form.
In the claim form, Mr Tzivanopoulos recorded his working hours as being 8.30am to 5.00pm and as 40 hours per week. He described his usual occupation as that of an electrical engineer responsible for the review and certification of network designs. He recorded 28 May 2011 as being the commencement of his employment with Endeavour.
In the claim form, Mr Tzivanopoulos recorded Dr Eric Lim of Workers Doctors as being his nominated treating doctor.
The Endeavour notice to show cause
In evidence, there is a letter from Endeavour to Mr Tzivanopoulos dated 28 March 2019.[20] The letter is headed “Notice to Show Cause – Potential Termination of Employment”.
[20] ARD at pages 77-80.
The letter set out a history of events following the issue of Mr Tzivanopoulos’ PIP in June 2018, which may be relevantly summarised as follows:
· the PIP was monitored through regular on-the-job feedback and a series of scheduled meetings involving Mr Phan, Ms Gopala and Mr Tzivanopoulos’ union representative, Mr Simon Barkho, as a support person;
· the first scheduled meeting occurred on 12 June 2018, where the objectives and duration of the PIP were discussed;
· it was determined that the PIP would be for a period of five months and took into account the issues raised, the nature of Mr Tzivanopoulos’ work and the fact that he had a period of two months pre-planned and approved leave during the period;
· Mr Tzivanopoulos’ performance did not improve and it was considered appropriate to issue him with a formal warning on 8 October 2018 and Endeavour continued to monitor performance issues with the ongoing implementation of the PIP;
· in December 2018, Endeavour identified that Mr Tzivanopoulos’ performance continued to fall short of the standards required of his position and he was considered to be in breach of the Endeavour Code of Conduct in respect of certain matters identified in the letter;
· on 17 December 2018, Mr Tzivanopoulos was issued with a final warning letter and it was determined that the PIP would continue to apply and a further review meeting was scheduled for 15 January 2019;
· on 10 January 2019, Mr Tzivanopoulos commenced sick leave and remained absent from work due to an alleged medical condition;
· Mr Tzivanopoulos submitted medical certificates that did not disclose the nature of any illness or injury;
· Endeavour arranged for an independent medical examination with Dr Sarah Moss on 15 March 2019 and Mr Tzivanopoulos did not attend the appointment;
· on 19 March 2019, Mr Tzivanopoulos lodged a workers compensation claim with Endeavour alleging that he had sustained a neck and upper back injury, and
· Endeavour was of the preliminary view, in the light of the history referred to above, that it was appropriate to exercise its right to terminate Mr Tzivanopoulos’ employment, subject to him providing any response, additional information and submissions as to why his employment ought not be terminated by 5 April 2019.
Ms Maha Gopala’s evidence
In evidence, there is a statement by Ms Maha Gopala dated 1 April 2019.[21] I will now refer to the relevant parts of that statement.
[21] Reply at pages 61-65.
Ms Gopala stated that at the time of providing her statement, she had been employed by Endeavour for 11 months. In the last week of May 2018, Ms Gopala became involved with Mr Tzivanopoulos’ work issues relating to customer complaints, performance issues and behavioural issues. Those issues were raised by Ms Gopala, who was Endeavour’s human resources business partner and discussed with Mr Han Phan and Mr Anthony Kavaliauskias.
Ms Gopala stated that she sat down with Mr Tzivanopoulos’ manager to discuss the issues of customer complaints, performance and behaviour. Ms Gopala became aware that the manager had had conversations with Mr Tzivanopoulos about his behaviour, especially in respect of customer complaints. It was not the first time that a customer had not wanted to work with Mr Tzivanopoulos. Performance improvement was not achieving anything and Endeavour was losing customers. Customers would usually raise a complaint when Mr Tzivanopoulos dealt with their jobs. Customers stated that he was difficult to work with.
Ms Gopala stated that a PIP was in place and there was a meeting with Mr Tzivanopoulos on 12 June 2018 to discuss the PIP in the presence of a union delegate. They had conversations about areas of improvement. Mr Tzivanopoulos was given an opportunity to provide feedback and a response to the PIP. The PIP was designed to commence on 12 June 2018 and end on 12 November 2018.
Ms Gopala stated that at or about the end of the PIP period, it was decided that the PIP be extended because there had been no consistency in Mr Tzivanopoulos’ performance and customer complaints had escalated. During the initial PIP period, the taking of excessive sick leave was discussed with Mr Tzivanopoulos at meetings, who stated that the sick days taken were due to headaches, stomach pains and common cold/flu. He did not say that he required support with any issue.
Ms Gopala stated that even after the PIP had been extended, Mr Tzivanopoulos was still falling short of the standards required in the PIP. He was provided with coaching, guidance and a lot of support. Complaints from customers highlighted Mr Tzivanopoulos’ demeaning and disrespectful attitude. Customers complained of difficulties in getting through to him and getting things resolved.
Ms Gopala stated that Mr Tzivanopoulos was provided with opportunities to provide feedback and explain any mitigating circumstances before a warning was issued. There were fortnightly meetings. At those meetings, he was defensive and did not provide any mitigating evidence. As a result, Endeavour issued Mr Tzivanopoulos with a final warning on 17 December 2018. The final review for the extended PIP was to take place on 15 January 2019, being the date on which a decision was to be reached as to whether Mr Tzivanopoulos had made sufficient improvement and, if not, consider other options, including a possible termination of his employment.
Ms Gopala stated that Mr Tzivanopoulos’ performance fell short of the standard required by Endeavour. Insufficient improvement had been demonstrated by him. On 10 January 2019, Mr Tzivanopoulos called in sick and Endeavour was unable to carry out the planned final PIP review on 15 January 2019. Mr Tzivanopoulos knew that a decision was going to be made in respect of his employment with Endeavour on 15 January 2019. He was also well aware that he had failed to meet the standards required in his PIP.
Ms Gopala stated that, at no time, did Mr Tzivanopoulos ever complain or report any neck, back or arm injuries.
Mr Han Phan’s evidence
In evidence, there is a statement by Mr Han Phan.[22] I will now refer to the relevant parts of that statement.
[22] Reply at pages 66-69.
Mr Phan stated that he was employed by Endeavour as a design coordination manager and that Mr Tzivanopoulos was employed as a contestable works engineer reporting to him.
Mr Phan stated that Mr Tzivanopoulos was under a PIP commencing 12 June 2018, which was subsequently extended. There were many customer complaints about Mr Tzivanopoulos regarding the way he dealt with them. In the PIP meeting, Mr Tzivanopoulos was in denial and remained so. He was of the view that he had not done anything wrong.
Mr Phan stated that Mr Tzivanopoulos went off work on workers compensation on 9 January 2019. He had not returned to work since. When he called to extend his sick leave, he reluctantly advised that he did not know what was wrong and he had to see a specialist.
Mr Phan stated that before Mr Tzivanopoulos went off work, there did not seem to be anything wrong with him. He was acting normally. He had never complained that he had hurt his back at work. He had been provided with a sit/stand desk at work.
Mr Phan stated that he believed that Mr Tzivanopoulos had gone off work because he knew that he had not improved his performance under the PIP. He went off work after he was issued with a formal warning. He believed that Mr Tzivanopoulos saw him as the enemy instead of his manager, who could coach him.
Mr Billy Wood’s evidence
In evidence, there is a statement by Mr Billy Wood dated 16 April 2019.[23] I note that page 2 of the statement was missing. In that regard, it was of limited assistance.
[23] Reply at pages 70-71.
Mr Wood stated that he was contracted to Endeavour as a Health Coach. Mr Tzivanopoulos would not provide him with any information about his injury whilst working for Endeavour. Mr Wood had heard from his manager that Mr Tzivanopoulos had previously made complaints about his neck and was provided with ergonomic adjustments.
Mr Wood stated that there was a discussion between him and Mr Tzivanopoulos about a medical certificate from a spinal doctor. Mr Tzivanopoulos confirmed that he had sustained a neck injury. There was no discussion about the nature of the injury.
Mr Wood stated that, following his discussion with Mr Tzivanopoulos, he liaised with Human Resources (HR) and an independent medical examination was booked for 12 February 2019 with Dr Sarah Moss. Mr Tzivanopoulos did not attend the appointment. The appointment was rescheduled three times and Mr Tzivanopoulos failed to attend on each occasion. Mr Wood ceased contact after a union representative, engaged by Mr Tzivanopoulos, advised him to stop contacting him.
Recovery Partners’ ergonomic assessment report
In evidence, there is an ergonomic assessment report by Mr Greg Shipp of Recovery Partners dated 11 September 2017.[24] The report related to Mr Tzivanopoulos’ workstation and in particular, a review to determine whether a permanent sit/stand workstation was recommended. The ergonomic assessment was sought at the direction of Mr Christopher Charman.
[24] Reply at pages 52-60.
Mr Shipp took a history from Mr Tzivanopoulos of spinal pain in 2013 without any specific incident causing his symptomatology. The pain symptoms developed gradually. Mr Tzivanopoulos reported that, since 2013, he would experience acute pain symptoms, at least, twice per year without any specific predisposing incident. Mr Tzivanopoulos presented a medical certificate dated March 2013 that referred to a T4/5 rib joint sprain injury and a medical certificate dated March 2014 that referred to a cervical spinal joint sprain. Mr Tzivanopoulos reported a flare-up of symptoms in May 2017. Pain levels were typically at 2/10 to 3/10 through the cervical spine, mid thoracic spine and upper lumbar spine on the visual analogue scale. Such pain levels could reach up to 7/10 to 8/10 on the visual analogue scale. There were intermittent sensations of pins and needles through the fingers of the right upper limb. Mr Tzivanopoulos reported that he had recently undertaken chiropractic treatment following the flare-up in May 2017 and noted that two to three sessions would resolve his pain.
There were two poor quality black and white photographs of Mr Tzivanopoulos’ workstation at the time of the ergonomic assessment. One demonstrated the workstation set-up for sitting and the other for standing.
Mr Shipp described Mr Tzivanopoulos’ duties as a contestable works engineer to involve, predominantly desk-based work with frequent typing/mousing, occasional telephone use and frequent referencing of hard copy materials.
Mr Shipp made the following observations about Mr Tzivanopoulos’ ergonomic chair:
· the chair was a type I ergonomic chair with a standard medium backrest;
· the chair height was slightly lowered to 510mm (from floor to seat pan height) so that the elbows were in line with his workstation when relaxed and seated;
· the lumbar support within the chair was raised (240mm from the seat pan base) so that it contoured with his lumbar spine, and
· a foot rest was in use.
Mr Shipp made the following observations of Mr Tzivanopoulos’ corner desk:
· the desk was at a fixed height of 710mm;
· a sit/stand workstation option (an Ergotron WorkFit T-L) had been trialled with comfort;
· when the sit/stand option was in use, the working platform was at 1100mm, and
· a foot rest was in use.
Based on Mr Tzivanopoulos’ reported chronic symptomology of the spine and the current benefit he was experiencing with the use of a sit/stand desk option, Mr Shipp supported the provision of a sit/stand desk to enable Mr Tzivanopoulos to perform work in the standing posture and reduce the load through his spine.
Mr Shipp made uncontroversial observations about Mr Tzivanopoulos’ monitors, mouse, keyboard, document holder and telephone. Mr Tzivanopoulos was directed to being “front on”[25] to the monitors when in use. Mr Shipp recommended the benefits of using a wrist rest to maintain neutral positioning of the wrists with keyboard use. Mr Shipp reported discussing the efficacy of pause breaks with Mr Tzivanopoulos and the scheduling of a sitting versus standing schedule during the working day. Mr Shipp observed that Mr Tzivanopoulos demonstrated satisfactory posture whilst seated within his chair and also whilst standing at his workstation.
The treating medical evidence
[25] Reply at page 57.
Health Plus Chiropractic
In evidence, there is a document issued by Dr Kerrie Park of Health Plus Chiropractic dated 20 March 2013.[26] The document stated that Mr Tzivanopoulos was suffering from a right T4/5 rib joint sprain injury and that, as a result, sitting for prolonged periods was aggravating his condition. Dr Park certified Mr Tzivanopoulos unfit for work from 20 March 2013 to 21 March 2013. The document made no reference to neck, shoulder or upper limb symptoms.
[26] ARD at page 107.
In evidence, there are Mr Tzivanopoulos’ clinical records produced by Health Plus Chiropractic.[27] I found the handwritten parts of the clinical records difficult to read. The clinical records commenced with an entry on 19 March 2013 and ended with an entry on 21 June 2013. There were 22 attendances recorded in the clinical records. There were barely legible references to symptoms in the right-sided neck, lower neck and back. There were references to stiffness, aching pain and tingling sensations.
[27] ARD at pages 307-313.
Included in the clinical records was an X-ray report by Dr Rohan Sabharwal, radiologist to Dr Park dated 18 April 2013.[28] The report related to an X-ray of Mr Tzivanopoulos’ thoracic spine. The history recorded in the report was one of back pain. Dr Sabharwal found that there was a slight mid thoracic curvature convex to the right; no significant thoracic wedge compression; no significant thoracic spondylotic change; and no paravertebral soft tissue abnormality.
[28] ARD at page 309.
Dr Ken McAviney
In evidence, there is a medical certificate issued by Dr Ken McAviney, chiropractor and osteopath dated 3 March 2014.[29] Dr McAviney certified Mr Tzivanopoulos unfit for normal duties until 4 March 2014 in respect of a cervical spinal joint sprain.
[29] ARD at page 108.
In evidence, there are Mr Tzivanopoulos’ clinical records produced by Dr McAviney.[30] The handwritten clinical records are barely legible. However, in evidence, there is a report by Dr McAviney dated 13 April 2019 addressed ‘to whom it may concern’ that appears to provide a brief summary of the clinical records.[31]
[30] ARD at pages 314-315.
[31] ARD at page 316.
Dr McAviney reported that Mr Tzivanopoulos attended his clinic for treatment for neck pain in 2014. He returned in May 2017 complaining of neck pain and underwent three treatments. Mr Tzivanopoulos’ next consultation was in April 2018, when he complained of left shoulder pain and neck stiffness, which improved with treatment. On 12 May 2018, Mr Tzivanopoulos reported to Dr McAviney that his shoulder pain had resolved but that he had experienced paraesthesia in the fingers of his left hand, which resolved following treatment on his cervical spine. Mr Tzivanopoulos consulted Dr McAviney again in September 2018 complaining of neck pain and underwent four treatments. On 22 December 2018, Mr Tzivanopoulos presented with a more painful neck condition than previously. Dr McAviney noted that an
X-ray performed in January 2019 demonstrated degenerative joint disease in the lower cervical spine, especially at C5/6 and that he had lost his cervical lordosis. Dr McAviney opined that Mr Tzivanopoulos clearly had a chronic neck condition. In response to an enquiry by Mr Tzivanopoulos, Dr McAviney opined that the neck pain could have affected Mr Tzivanopoulos’ work performance, especially during the period September and December 2018 and January 2019.
Greystanes Family Medical Centre
In evidence, there are Mr Tzivanopoulos’ clinical records produced by Greystanes Family Medical Centre (Greystanes FMC) as of 1 July 2019.[32]
[32] ARD at pages 377-402.
The Greystanes FMC clinical records commenced with an entry on 8 August 2014 and concluded with an entry on 28 December 2018. During that period, there were 32 consultations recorded with general practitioners in the Greystanes FMC practice.
None of the entries in the Greystanes FMC clinical records recorded complaints of symptoms in Mr Tzivanopoulos’ neck, shoulders or upper limbs.
Wentworthville Medical and Dental Centre
In evidence, there are Mr Tzivanopoulos’ clinical records produced by Wentworthville Medical and Dental Centre (Wentworthville MDC) as of 2 August 2019.[33] I will now refer to the relevant parts of those clinical records.
[33] ARD at pages 827-889.
The Wentworthville MDC clinical records commenced with an entry on 4 July 2012 and concluded with an entry on 18 April 2019. The entries in the clinical records between 4 July 2012 and 12 March 2018 did not record complaints of symptoms in Mr Tzivanopoulos’ neck, shoulders or upper limbs. There were no further entries in the clinical records until 10 January 2019.
The first entry in the Wentworthville MDC clinical records that referred to neck and related symptoms was dated 10 January 2019, being the day following Mr Tzivanopoulos’ last day of work with Endeavour.[34] On 10 January 2019, Mr Tzivanopoulos consulted Dr Farzana Yusuf, who took a history that Mr Tzivanopoulos had suffered pain in the neck area on and off since 2013 and that the pain was now coming on more frequently. He had undergone chiropractic treatment. The most recent episode started in mid-December 2018. He had undergone physiotherapy but it did not assist. He worked in a desk job. He was not able to sleep. The pain was located on the left side of his neck. The right index finger felt numb. On examination, Dr Yusuf observed lower midline cervical spine tenderness and pain on flexion and extension of the neck. Dr Yusuf referred Mr Tzivanopoulos for a cervical spine X-ray and recommended that he take Nurofen for the pain. Dr Yusuf issued a medical certificate certifying Mr Tzivanopoulos unfit for work from 10 January 2019 to 11 January 2019 inclusive.[35] The certificate was not a State Insurance Regulatory Authority (SIRA) certificate of capacity and did not specify the nature of any illness or injury.
[34] ARD at page 832.
[35] ARD at page 109.
On 10 January 2019, Mr Tzivanopoulos underwent an X-ray of his cervical spine by Dr Denis Gradinscak, radiologist.[36] The history provided to the radiologist was one of acute chronic neck pain and tender lower mid cervical spine. Dr Gradinscak found a mild to moderate disc height reduction and endplate degenerative change; straightened cervical lordosis; mild bony foraminal narrowing due to uncovertebral osteophytes at the right C4/5 and C6/7 foramina; and normal facet joints.
[36] ARD at page 110.
On 11 January 2019, Mr Tzivanopoulos consulted Dr Gobinda Das of Wentworthville MDC.[37] Dr Das prescribed Maxigesic tablets and issued a medical certificate certifying Mr Tzivanopoulos unfit for work until 18 January 2019.[38] The certificate was not a SIRA certificate of capacity and did not specify the nature of any illness or injury. Dr Das referred Mr Tzivanopoulos to Dr Anil Nair, spinal surgeon, for management of his neck pain, which had been worsening for weeks.[39]
[37] ARD at pages 831-832.
[38] ARD at page 111.
[39] ARD at pages 113-114.
On 21 January 2019, Mr Tzivanopoulos consulted Dr Das, who prescribed Voltaren Rapid 50mg tablets.[40]
[40] ARD at page 831.
On 12 February 2019, Mr Tzivanopoulos consulted Dr Das complaining of neck and back pain for a period of months and requesting physiotherapy.[41] On examination, there was no neurovascular deficit. Dr Das referred him for physiotherapy.
[41] ARD at pages 830-831.
On 1 March 2019, Mr Tzivanopoulos consulted Dr Das with a history of neck and back pain that has persisted for months.[42] On examination, there was no neurovascular deficit. Dr Das issued a medical certificate certifying Mr Tzivanopoulos unfit for work.
[42] ARD at pages 828-829.
On 18 April 2019, Mr Tzivanopoulos consulted Dr Das complaining that his neck pain was radiating into both shoulders, arms, forearms, hands and fingers. He complained of numbness in the right index finger and right thumb and that the left arm laterally felt numb. Dr Das issued a medical certificate certifying Mr Tzivanopoulos unfit for work and stated that he was suffering from persisting and worsening neck and back pain.[43]
[43] ARD at page 112.
Dr Anil Nair
In evidence, there are Mr Tzivanopoulos’ clinical records produced by Dr Anil Nair, spinal surgeon.[44] I will now refer to the relevant parts of those clinical records.
[44] ARD at pages 278-306.
On 22 January 2019, Mr Tzivanopoulos consulted Dr Nair, who reported back to Dr Das.[45] Dr Nair noted that Mr Tzivanopoulos complained of sub axial cervical and bilateral upper extremity pain. He took a history that Mr Tzivanopoulos had experienced symptoms for about five years that were worsening in magnitude and provoked by prolonged sitting, standing and working at computers. Symptoms were unresponsive to physical therapy, chiropractic care and analgesics. There had been no precipitous functional loss. On examination, Dr Nair observed preserved reflexes; no pathological upper or lower extremity reflexes were elicited; shoulders were non-irritable; and Spurling’s test was positive bilaterally. Dr Nair noted that the cervical spine X-rays revealed disc collapse and osteophytes at C5/6 and C6/7. He referred Mr Tzivanopoulos for an MRI scan of his cervical spine.
[45] ARD at page 282.
On 31 January 2019, Mr Tzivanopoulos underwent EOS imaging by Dr Sonia Kariappa, radiologist, on the referral of Dr Nair.[46] Dr Kariappa concluded that the imaging demonstrated a mild curvature of the thoracic spine convex to the right centred at T7/8 with vertebral body heights preserved and intervertebral discs narrowing and anterior osteophytosis at C5/6 and C6/7 with loss of the normal cervical lordosis.
[46] ARD at page 303.
On 1 February 2019, Mr Tzivanopoulos underwent a multi-positional MRI scan of his cervical spine by Dr Matthew Lee on the referral of Dr Nair.[47] Dr Lee concluded that the scan demonstrated a multi-level degenerative spine with multi-level marked canal and foraminal stenoses at C4/5 and C6/7 and to a lesser extent, at C5/6.
[47] ARD at pages 118-119.
On 10 February 2019, Mr Tzivanopoulos underwent an MRI scan of his thoracolumbar spine by Dr Tej Dugal, radiologist, on the referral of Dr Nair.[48] Dr Dugal concluded that there was normal thoracic and lumbar spine alignment and no obvious cord signal alteration or intra-axial lesion.
[48] ARD at page 299.
On 4 March 2019,Mr Tzivanopoulos underwent a selective CT epidural injection at the C5/6 level by Dr Lee on the referral of Dr Nair.[49]
[49] ARD at page 292.
In evidence, there are medical certificates issued by Dr Nair dated 22 January 2019, 5 February 2019 and 4 March 2019.[50] The certificates were not SIRA certificates of capacity and did not specify the nature of any illness or injury.
[50] ARD at pages 115-117.
Workers Doctors
In evidence, there are Mr Tzivanopoulos’ clinical records produced by Workers Doctors as of 30 July 2019.[51] The Workers Doctors clinical records commenced with an entry on 13 March 2019 and concluded with an entry on 4 July 2019.
[51] ARD at pages 403-826.
The clinical records indicated that Mr Tzivanopoulos consulted Dr Sebastian Calvache-Rubio and Dr Eric Lim, general practitioners; Mr Gary Ng and Ms Fion Lee physiotherapists; and Mr Carl Nielsen, psychologist in the Workers Doctors medical practice.
On 13 March 2019, Mr Tzivanopoulos consulted Dr Calvache-Rubio, who recorded the consultation in the Workers Doctors clinical records.[52] Dr Calvache-Rubio took a history that Mr Tzivanopoulos suffered neck pain with left-sided radiculopathy and upper back pain from work; that he ceased working on 10 January 2019 due to the pain; that the date of injury was 9 January 2019; that he had consulted his general practitioner, a physiotherapist, a chiropractor and an orthopaedic surgeon; that he had undergone a cortisone injection in the previous week; that he was not working and currently on sick leave; that his general practitioner told him that it was difficult to “do workers comp”;[53] and that he was not sure what to do at the moment and would discuss the situation with his family and call back. Dr Calvache-Rubio noted that he would request Mr Tzivanopoulos’ medical records from his previous doctors.
[52] ARD at page 407.
[53] ARD at page 407.
On 18 March 2019, Mr Tzivanopoulos consulted Mr Ng.[54] Mr Ng took a history that Mr Tzivanopoulos had suffered neck pain since March 2013; that an ergonomic assessment at work was recommended by a physiotherapist and chiropractor; that after six months his workplace was set up; that his symptoms worsened eight months later and continued; that his neck pain worsened in 2017; that in late 2017 a standing station was installed and he felt better; and that his symptoms have continued to worsen. Mr Ng recorded that Mr Tzivanopoulos had been seeing a chiropractor on and off since 2013 and had also undergone physiotherapy. Mr Ng recorded that Mr Tzivanopoulos underwent an injection on 4 March 2019, which was not helping. Mr Tzivanopoulos complained of left-sided neck pain; occasional numbness in the arms, the right greater than the left; numbness in the right first and second fingers; and less power in the left arm. Mr Ng recorded a sitting tolerance of 5 to 10 minutes; standing/walking tolerance of 30% on and 70% off; and a driving tolerance of 40 minutes. He recorded Mr Tzivanopoulos’ occupation as a computer-based electrical engineer working eight hours a day, five days a week.
[54] ARD at pages 407-408.
On 18 March 2019, Mr Tzivanopoulos consulted Dr Calvache-Rubio, who recorded the following:
“On Wednesday, 9 January 2019 Mr Tzivanopoulos reported that whilst at work he suffered a neck and upper back injury from repetitive computer work over the years at work. He had occupational assessments done to his workstation due to neck pain. He continued working in pain until 9 January 2019 deteriorating his condition.
From my understanding of the injured worker’s role as a Engineer [sic, an engineer], it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate an alternate mechanism of injury, but would be happy to consider such evidence if provided to me.”[55]
[55] ARD at page 409.
On 18 March 2019, Dr Calvache-Rubio recorded Mr Tzivanopoulos’ symptoms as neck pain and stiffness, radiating to bilateral shoulders and arms, the right greater than the left; pins and needles in the bilateral hands; bilateral hand weakness; upper back pain; trouble sleeping; and low energy. Dr Calvache-Rubio concluded that Mr Tzivanopoulos had suffered a neck/back injury with a diagnosis of cervical spine radiculopathy; canal and foraminal stenoses; thoracic spine strain; and chronic pain with psychosocial barriers. He opined that Mr Tzivanopoulos would likely benefit from a multidisciplinary management program.
On 25 March 2019, Mr Tzivanopoulos consulted Ms Lee, who took a similar history to that taken by Mr Ng.[56] Ms Lee recommended the use of a heat pack and stretching exercises.
[56] ARD at pages 411-412.
On 25 March 2019, Mr Tzivanopoulos also consulted Dr Lim, who took a history that he was struggling with his work and that he had consulted Dr Nair.[57] Dr Lim referred Mr Tzivanopoulos to Dr Singh, orthopaedic and spine surgeon for management of his neck and back issues.[58]
[57] ARD at page 412.
[58] ARD at page 440.
On 29 March 2019, Mr Tzivanopoulos consulted Dr Calvache-Rubio, who recorded that Mr Tzivanopoulos was stressed having received a letter of termination from his employer.[59] There was a reference to providing psychological support.
[59] ARD at pages 412-413.
On 11 April 2019, Mr Tzivanopoulos consulted Dr Singh, who reported back to Dr Lim on 18 April 2019.[60] Dr Singh noted a six year history of neck and shoulder pain and now a sensation of pins and needles in the hands and arms. On examination, Dr Singh observed a limitation of neck range of motion; no spinal tenderness on palpation; normal sensation to light touch in the upper limbs from C5 to T1 bilaterally; and depressed reflexes in both upper limbs and lower limbs. He opined that Mr Tzivanopoulos had significant symptoms secondary to multi-level cervical stenosis; spinal cord compression; and radicular symptoms from foraminal stenosis, mainly at C4/5 as well as C5/6 and C6/7. Dr Singh did not believe that there was much room for conservative treatment. Mr Tzivanopoulos had experienced symptoms for quite some time and was significantly disabled by pain and weakness of the left shoulder secondary to C4/5 foraminal stenosis, in addition to cervical spinal cord compression. He recommended Mr Tzivanopoulos consider surgery in the form of a decompression and fusion from C4 to C7.
[60] ARD at page 424.
On 11 April 2019, following his consultation with Dr Singh, Mr Tzivanopoulos consulted Dr Lim and discussed his likely need for surgery.[61] Dr Lim recorded that Mr Tzivanopoulos had persistent issues and was “unsure what is the claim”.[62]
[61] ARD at page 413.
[62] ARD at page 413.
On 18 April 2019, Mr Tzivanopoulos consulted Dr Calvache-Rubio, who recorded that he had attended for a review; advised that he was undergoing physiotherapy; advised that he had ongoing concerns and was experiencing difficulties; advised that physiotherapy only provided temporary relief and that surgery had been suggested.[63] Dr Calvache-Rubio repeated the history taken in previous consultations and confirmed his earlier diagnosis.
[63] ARD at pages 413-415.
On 9 May 2019, Mr Tzivanopoulos consulted Dr Lim, who recorded that they had a conversation about physiotherapy treatments and how they had provided some relief.[64]
[64] ARD at page 416.
On 6 June 2019, Mr Tzivanopoulos consulted Dr Calvache-Rubio, who recorded that he had attended for a review; advised that he was experiencing ongoing severe pain and stiffness; that physiotherapy provided temporary relief; and that he was hesitant about the surgery that had been suggested.[65] Dr Calvache-Rubio recorded that Mr Tzivanopoulos was of low mood and low energy. He was overthinking and frustrated. There were psychosocial barriers.
[65] ARD at pages 416-417.
On 4 July 2019, Mr Tzivanopoulos consulted Mr Nielsen, who recorded symptoms of chronic pain; disturbed sleep; impaired memory; impaired concentration; excessive fatigue; avoidant behaviour; and depressive symptoms.[66] Mr Nielsen diagnosed an adjustment disorder with depressed and anxious mood.
[66] ARD at page 417.
On 4 July 2019, Mr Tzivanopoulos also consulted Dr Calvache-Rubio, who recorded that he had attended for a review; was suffering from psychological distress; was suffering from severe pain; underwent some conciliation with Endeavour but it did not go well; and required surgery but was still thinking about it.[67] Dr Calvache-Rubio referred Mr Tzivanopoulos to Dr Peter Khong for a second opinion.[68]
[67] ARD at pages 417-418.
[68] ARD at page 461.
Dr Peter Khong
On 30 August 2019, Mr Tzivanopoulos consulted Dr Peter Khong, neurosurgeon, who reported back to Dr Calvache-Rubio.[69] Dr Khong reported the presenting complaints as neck pain, bilateral shoulder pain and right arm pain. He recorded the history of presenting complaint as follows:
[69] ARD at pages 269-270.
“Worked as Engineer, mostly desk job, at that particular job since 2011
Around 2013 started to get neck, shoulder and upper back soreness
Had radiating pain posterior right arm, lateral forearm to right thumb and index finger
Pain went away with non-operative management
Returned in 2017, but improved again
Returned 2018, especially when spending more time at work
Around December 2018, was getting worsening pain and numbness in right index and thumb, sometimes in middle finger
Worst radial index finger
Bilateral shoulder pain
Bilateral upper cervical spine pain
Interscapular pain
Having physiotherapy with decompression which pulls his head up and back, relieves pain for a few days”[70][70] ARD at page 269.
Dr Khong reported that Mr Tzivanopoulos presented with neck pain, bilateral shoulder pain and right arm pain in a C6 or C7 distribution. He noted that not much relief was obtained from a C6 injection. The foraminal stenosis was worse at C6/7 on the right. He arranged for Mr Tzivanopoulos to undergo a right C7 perineural injection and a bone scan.
On 1 November 2019, Mr Tzivanopoulos consulted Dr Khong who reported back to Dr Calvache-Rubio.[71] Dr Khong reported that Mr Tzivanopoulos underwent a bone scan on 10 September 2019 that demonstrated an increased uptake at the C5/6 disc space. On 17 September 2019, Mr Tzivanopoulos underwent a right C7 perineural injection that provided a good result for several weeks before the pain returned. Dr Khong opined that Mr Tzivanopoulos had multi-level degenerative change, worse at C4/5, C5/6 and C6/7 and that the bone scan demonstrated increased uptake at C5/6 and opined:
“Given that Mr Tzivanopoulos’ issue is neck pain and arm pain, it is reasonable to consider a fusion. He may require at least C5/6 and C6/7 fusions, though I would be concerned about adjacent disease at C4/5 as there is already severe canal stenosis at this level. A right C5/6 and C6/7 foraminotomy would have a good change [sic, chance] at helping his right arm pain but not necessarily his neck pain.
Mr Tzivanopoulos wants to hold off on surgery for now. I will see him in 2 months’ time to review his progress.”[72]
[71] ARD at pages 264-265.
[72] ARD at page 265.
On 17 January 2020, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio.[73] Dr Khong discussed the surgical options with Mr Tzivanopoulos. He opined that a left C5/6 and C6/7 foraminotomy would help with the right arm symptoms but not the left arm symptoms or neck pain. A C5/6 and C6/7 anterior cervical discectomy and fusion would help with his arm and neck symptoms but Dr Khong was concerned about the moderate to severe canal stenosis at C4/5. The other option would be a three level anterior cervical discectomy and fusion. He arranged for Mr Tzivanopoulos to undergo another MRI scan of his cervical spine.
[73] ARD at pages 250-252.
On 12 February 2020, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio.[74] He reported that the MRI scan of Mr Tzivanopoulos’ cervical spine on 2 February 2020 demonstrated degenerative disc disease, worse at C3/4, C5/6 and C6/7. There was bilateral foraminal stenosis at C3/4, C4/5 and C6/7. Canal stenosis was worse at C4/5 and C6/7. Dr Khong arranged for Mr Tzivanopoulos to undergo bilateral C5 perineural injections.
[74] AR at pages 271-273
On 13 May 2020, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio.[75] He reported that the bilateral C4/5 foraminal injection provided Mr Tzivanopoulos with very slight improvement in neck and shoulder pain. Dr Khong opined, on balance, that the main symptomatic level was at C6/7 and he would prefer to start at that level rather than performing a three level anterior cervical discectomy and fusion. On 13 May 2020, Dr Khong wrote to Endeavour seeking approval to proceed with a C6/7 anterior cervical discectomy and fusion.[76]
[75] ARD at pages 266-268.
[76] ARD pages 144-146.
On 26 August 2020, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio that Mr Tzivanopoulos attended for review and continued to complain of neck pain and bilateral arm pain and weakness. He noted that they awaited Endeavour’s approval to proceed with the proposed C6/7 anterior cervical discectomy and fusion.[77]
[77] ARD at pages 149-152.
On 30 October 2020, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio that Mr Tzivanopoulos attended for review and continued to complain of neck pain and right-sided arm pain. He noted that they awaited Endeavour’s approval to proceed with the proposed C6/7 anterior cervical discectomy and fusion.[78]
[78] ARD at pages 153-156.
On 22 January 2021, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio that Mr Tzivanopoulos attended for review and continued to complain of neck pain and right arm symptoms. He noted that they awaited Endeavour’s approval to proceed with the proposed C6/7 anterior cervical discectomy and fusion.[79]
[79] ARD at pages 157-160.
In evidence, there is a report by Dr Khong dated 8 March 2021.[80] The report appeared to have been requested by Mr Tzivanopoulos’ lawyers. I will now refer to the relevant parts of that report.
[80] ARD at pages 246-249.
Dr Khong reported on the history provided to him by Mr Tzivanopoulos, which was, in the main, consistent with the evidence. He reported that Mr Tzivanopoulos complained of persistent neck pain and right arm symptoms and in his opinion, had no capacity to work. He opined that such incapacity was the result of his injury at work and that his employment was a substantial contributing factor.
As to prognosis, Dr Khong opined that it was poor without surgery. He opined that surgery was reasonably necessary at other levels, that is, C4/5, C5/6 and C6/7 but his recommendation was for a C6/7 anterior cervical discectomy and fusion to address the canal stenosis and right-sided foraminal stenosis because a three or four level fusion carried a much higher risk of complications and failure of fusion.
Dr Khong opined that it was likely that Mr Tzivanopoulos’ cervical spine pathology was asymptomatic prior to the commencement of his employment with Endeavour. He opined that Mr Tzivanopoulos’ employment may have caused an acceleration of the degenerative changes in the cervical spine. He also experienced an exacerbation of those degenerative changes in 2018 because he was spending more time at work. Employment was the main contributing factor to the acceleration and exacerbation of Mr Tzivanopoulos’ cervical spine pathology.
On 19 April 2021, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio that Mr Tzivanopoulos attended for review and continued to complain of bilateral neck pain, shoulder pain and right arm pain and numbness. He arranged for Mr Tzivanopoulos to undergo a repeat MRI scan of the cervical spine and a bone scan because his last scans were over one year old.[81]
[81] ARD at pages 167-170.
On 23 July 2021, Mr Tzivanopoulos consulted Dr Khong, who reported back to Dr Calvache-Rubio that Mr Tzivanopoulos attended for review and continued to complain of neck pain, bilateral shoulder and arm pain, worse on the right. He observed that the MRI scan of the cervical spine dated 24 April 2021 demonstrated degenerative disc disease at C4/5, C5/6 and C6/7; canal and bilateral foraminal stenosis at C4/5; mild canal and right foraminal stenosis at C5/6; and canal stenosis and severe foraminal stenosis at C6/7, worse on the right. He observed that the bone scan dated 28 April 2021 demonstrated a mild uptake at C4/5 and C5/6. He noted that Mr Tzivanopoulos awaited the outcome of an appeal in respect of the proposed C6/7 anterior cervical discectomy and fusion.[82]
[82] ARD at pages 167-170.
In response to a request for a report from Mr Tzivanopoulos’ lawyers, Dr Khong prepared a report dated 13 May 2021.[83] It is clear from the contents of his report, that Dr Khong was provided with a copy of Mr Tzivanopoulos’ supplementary statement dated 13 April 2021.
[83] ARD at pages 165-166.
In response to the question whether it was more likely than not that the setup of Mr Tzivanopoulos’ workstation over a period of eight years caused a permanent worsening and aggravation of his cervical spondylosis, Dr Khong opined that it was likely that the setup at his workstation caused a permanent aggravation of the degenerative changes in his cervical spine. He based his opinion on the history provided to him by Mr Tzivanopoulos. That history included:
· Mr Tzivanopoulos’ work as an engineer involved mostly desk work;
· as a result of constant desk work, he developed neck, shoulder and upper back soreness with radiation down his arms that started in 2013 but improved with non-operative management;
· the pain returned in 2017 with some improvement again, and
· as he spent more time at work in 2018, the pain returned but this time, it persisted.
In response to the request to provide his comments as to whether Mr Tzivanopoulos’ statement was consistent with the history he took from him, Dr Khong stated that it was consistent. Dr Khong took into account that Mr Tzivanopoulos reported progressive neck and arm pain as a result of years of desk work, with the latest exacerbation occurring in 2018 when he was spending more time at work. Such exacerbation had not improved to date.
In response to the request to provide his opinion as to how an aggravation of Mr Tzivanopoulos’ cervical spondylosis was caused by his employment, taking into account his supplementary statement dated 13 April 2021, Dr Khong opined as follows:
“Mr Tzivanopoulos reports long periods of desk work looking up and down from his monitors to his desk and vice versa, and also having phone calls where he would push the phone between his ear and right shoulder. It is likely that doing this over a long period (years) caused an aggravation of the degenerative changes in his neck, and may have even caused an exacerbation of these changes.”[84]
The forensic medical evidence
[84] ARD at page 166 at [3]
Dr James Bodel
On 21 August 2019, Mr Tzivanopoulos consulted Dr James Bodel, Orthopaedic Surgeon, at the request of his lawyers. In evidence there are two reports by Dr Bodel dated 21 August 2019.[85] I will now refer to the relevant parts of those reports.
[85] ARD at pages 95-106.
Dr Bodel took a history relating to Mr Tzivanopoulos’ injury, which I will now summarise. Mr Tzivanopoulos began to develop a gradual onset of neck, right shoulder girdle pain and later, left shoulder girdle pain in about 2013, associated with the nature of his work, which required prolonged sitting at a desk and the use of a computer. The matter was eventually reported to his manager. An ergonomic assessment of his work station was conducted, the outcome of which “helped a little”.[86] He underwent physiotherapy, chiropractic treatment and consulted a doctor, which he found helpful. He made good progress and seemed to recover. However, his neck was never entirely normal and he continued with his normal duties and experienced minor flare-ups of pain from time to time that required treatment. In 2017, he began to use a sit/stand desk at work, which he himself funded. He continued to undergo chiropractic treatment as required. His condition gradually deteriorated with “the heavy nature of the work”[87] and he continued to consult his chiropractor. By May 2018, he noticed the development of numbness and tingling in the right thumb, right index finger and right middle finger. Chiropractic treatment provided relief. Towards the end of 2018, the pain was becoming increasingly troublesome and eventually, he underwent X-rays of his cervical spine in January 2019. He was referred to Dr Nair, who recommended a cortisone injection under CT guidance on 5 March 2019. An MRI scan on 1 February 2019 demonstrated widespread degenerative disc disease of the cervical spine but principally at the C5/6 level. There were degenerative changes at C5/6 and C6/7. He consulted Dr Singh, who discussed an anterior cervical fusion. He continued to deteriorate and experience difficulties performing his normal work. His employment was ultimately terminated on 8 April 2019. He made a workers compensation claim in April 2019.
[86] ARD at page 96.
[87] ARD at page 96.
Dr Bodel summarised Mr Tzivanopoulos’ injuries as being an injury to the neck; an injury to the interscapular region of the thoracic spine; an injury to both arms, the right worse than the left; referred pain into the right thumb, right index finger and right middle finger; and weakness in the right arm.
On examination, Dr Bodel observed tenderness at the trapezius muscles at the base of the neck on the right; a reduced range of neck flexion, extension and rotation in all directions, mainly to the left; symmetry of neck movement and guarding; a restricted range of bilateral shoulder movement; impingement in the right shoulder; non-verifiable radicular complaints in the right upper limb involving the C6 nerve root; reflexes were present and equal; and there was no objective evidence of median or ulnar nerve pathology in either upper limb.
Dr Bodel noted that there were no X-rays or other tests available to him for review at the time of the consultation. He referred to the Workers Doctors extensive medical file and another extensive medical file from a general practitioner’s practice. It was unclear as to whether he was referring to the Wentworthville MDC clinical records or the Greystanes FMC clinical records. However, as Dr Bodel referred to the reports of Dr Nair and as the Greystanes FMC clinical records did not refer to complaints of neck or related symptoms, it is likely that the records he was referring to were those of Wentworthville MDC.
Dr Bodel observed from the MRI scan report of Mr Tzivanopoulos’ cervical spine included in the clinical records provided to him, that there was definite disc pathology at C4/5 and to a lesser extent at C5/6 and C6/7. In his opinion, there was no definite spinal cord compression and clinically there was no nerve root tension. Dr Bodel recommended against the widespread spinal fusion offered by Dr Singh because there were no objective signs of radiculopathy on clinical testing at the time of his examination and the persisting neck pain did not justify the proposed widespread spinal fusion. If localised signs of radiculopathy developed, then surgery may need to be considered. He recommended conservative treatment consisting of specialist review; an exercise based program with physiotherapy; exercise physiology to optimise spinal muscle tone and fitness; and analgesic, anti-inflammatory medication and anti-neuropathic pain medication.
Dr Bodel’s diagnosis was one of disc pathology in the cervical spine, primarily a degenerative condition that was constitutionally based. Further, Dr Bodel opined:
“The nature and conditions of his work, particularly the prolonged office work, may cause aggravation, acceleration, exacerbation and deterioration but there is no clinical sign of radiculopathy at this stage and therefore in my view, no indication for surgery.”[88]
[88] ARD at page 103 at [11].
Dr Bodel further opined:
“I am satisfied that the nature and condition [sic, conditions] of work is the main substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of a disease process.
There are underlying degenerative processes which are constitutionally based which have been aggravated by his work.”[89]
[89] ARD at page 103 at [14].
Dr Bodel opined that improved physical fitness levels would enhance Mr Tzivanopoulos’ ability to return to the workforce after further medical management. He opined that he should be able to contemplate a graded introduction to part-time lighter duty work with improved physical fitness levels and upgrade to his pre-injury style of work. Dr Bodel opined that Mr Tzivanopoulos was currently unfit for work and had a restricted capacity for work and that his ability to find work on the open labour market had been compromised. Further, Mr Tzivanopoulos probably had a potential for a reduction in his working life because of the effects of injury.
Dr Bodel opined that Mr Tzivanopoulos’ prognosis remained guarded.
In the shorter of his two reports dated 21 August 2019, Dr Bodel provided an assessment of Mr Tzivanopoulos’ whole person impairment at 16% in respect of his cervical spine, right upper extremity and left upper extremity and made no deduction for pre-existing impairment.
Dr Neil Cochrane
On 10 May 2019, Mr Tzivanopoulos consulted Dr Neil Cochrane, neurosurgeon and spinal surgeon at the request of Endeavour’s lawyers. In evidence, there is a report by Dr Cochrane dated 17 May 2019.[90] I will now refer to the relevant parts of that report.
[90] Reply at pages 3-13.
Dr Cochrane took a detailed history from Mr Tzivanopoulos. Mr Tzivanopoulos stated that he initially developed neck symptoms in the workplace in 2013, which led to an ergonomic assessment of his workstation. He did not recall formally reporting an injury, making a claim or seeking any specific treatment at that time. He recalled consulting his general practitioner, a physiotherapist and a chiropractor for symptoms in 2013, which settled and he continued working. Over the years there were transient episodes of numbness and pins and needles which would settle. In 2014, there was a spontaneous recurrence of symptoms in the low neck and escalating pain, resulting in his attendance on a chiropractor, after which his symptoms resolved. He recalled experiencing a flare-up of neck pain in 2016 and again responding to chiropractic treatments. In 2017, there were further symptoms. A sit/stand workstation was installed and the symptoms again settled. In 2018, he experienced a very busy year with many urgent jobs and large projects. In March 2018, he recalled a significant increase in symptoms resulting in an attendance on a chiropractor but this time, symptoms did not settle. In mid to late 2018, he became aware of symptoms of numbness in his dominant right arm. In about September 2018, he took a holiday and symptoms did not resolve. On his return from holiday, with an increased workload, symptoms again escalated and he consulted a chiropractor. On about 15 December 2018, there was a significant flare-up of pain and he sought medical treatment. In January 2019, he developed intractable symptoms, stopped work on 9 January 2019 and went on sick leave. He was treated by a physiotherapist and pain levels decreased, as did the tingling and dysesthesia in his right upper limb. His employment was terminated on 10 April 2019 and he was not able to return to work thereafter.
Mr Tzivanopoulos complained to Dr Cochrane of posterior neck pain, somewhat modified by the position of his neck and head, typically more left-sided than right-sided, radiating to the right upper arm or supra-medial aspect of the right shoulder by the scapular region. The neck pain could be quite intense at times. The neck and scapular pain was associated with numbness and tingling around both shoulders. On the left, the tingling and numbness did not pass beyond the shoulder. On the right, the pain passed down towards the radial right forearm and there was episodic numbness in the right index finger with some variable degree of tingling and numbness also in the right thumb and the first web space between the right thumb and right index finger. The left upper limb felt weak.
Dr Cochrane reviewed radiological investigations, which included the cervical spine X-ray dated 10 January 2019, the EOS scan dated 31 January 2019, the cervical MRI scan dated 1 February 2019 and the CT guided nerve root block dated 4 March 2019.
On examination, Dr Cochrane observed markedly restricted neck movements. There was some inconsistency in the presentation. There was submaximal effort and give way phenomena, far more marked in the left upper limb than the right upper limb examination. The right upper limb was reported as the symptomatic limb, although there were embellished motor signs on these asymptomatic left upper limb. The assessment of the cervical spine was associated with a significant degree of fear avoidance with minimal voluntary movement and some tremulousness of movement, which was somewhat embellished. Flexion and extension of the neck was half the expected range and lateral flexion was one third of the expected range bilaterally. Rotation of the neck was one quarter bilaterally with tremulousness. There was no convincing objective evidence of a radiculopathy.
Dr Cochrane’s diagnosis was one of established cervical spondylosis most marked at the C4/5, C5/6 and C6/7 levels with multiple regions of bony foraminal narrowing, which represented a chronic degenerative cervical spondylosis condition. He opined that there was no objective evidence of right sided radiculopathy to correlate with the reported distal right upper limb symptoms.
It is not uncommon in cases such as this, to have a divergence of medical opinion, as to whether the proposed surgery is reasonably necessary to address the pathology in Mr Tzivanopoulos’ cervical spine that is causative of his symptoms.
Dr Nair was the first medical specialist Mr Tzivanopoulos consulted in respect of his cervical spine and related symptoms. He consulted Dr Nair between 22 January 2019 and early March 2019. Dr Nair embarked on a conservative treatment path. He reviewed the X-ray of Mr Tzivanopoulos’ cervical spine dated 10 January 2019 and arranged for him to undergo EOS imaging on 31 January 2019, a multi-positional MRI scan of his cervical spine on 1 February 2019 and an MRI scan of his thoracolumbar spine on 10 February 2019. He arranged for Mr Tzivanopoulos to undergo a selective CT epidural injection at the C5/6 level on 4 March 2019. Mr Tzivanopoulos’ evidence was that the injection provided no benefit. I accept Mr Tzivanopoulos’ evidence in this regard.
On 11 April 2019, Mr Tzivanopoulos consulted Dr Singh in respect of his cervical spine and related symptoms. Dr Singh did not believe that there was much room for conservative treatment because Mr Tzivanopoulos had experienced symptoms for quite some time and was significantly disabled by pain. He recommended surgery in the form of a decompression and fusion from C4 to C7. Mr Tzivanopoulos decided to seek a second opinion.
Dr Khong was the third medical specialist consulted by Mr Tzivanopoulos in respect of his cervical spine and related symptoms and he sought a second opinion in relation to the surgery recommended by Dr Singh. Mr Tzivanopoulos’ first consultation with Dr Khong was on 30 August 2019 and he has continued under his care and management. Dr Khong initiated medical imaging and continued Mr Tzivanopoulos on a path of conservative treatment.
Dr Khong arranged for Mr Tzivanopoulos to undergo a bone scan on 10 September 2019; a right C7 perineural injection on 17 September 2019; an MRI scan of the cervical spine on 2 February 2020; C4/5 foraminal injections on 25 February 2020; a right C7 perineural injection on 23 December 2020; an MRI scan of the cervical spine on 21 April 2021 and a bone scan on 28 April 2021.
Mr Tzivanopoulos’ evidence was that the first perineural injection provided a good result for several weeks before the pain returned and that the foraminal injections only provided a slight improvement in his neck and shoulder pain. The second perineural injection helped with his periscapular and right bicep pain but did not help much with the pain in his right hand or forearm. I accept Mr Tzivanopoulos’ evidence in this regard. Dr Khong noted that Mr Tzivanopoulos had undergone physiotherapy that only transiently assisted with his symptoms and that he was taking Voltaren, Nurofen and Gabapentin for pain.
Dr Khong noted that Mr Tzivanopoulos had complained of persistent neck and arm pain, worse on the right, for two years and that the non-operative management referred to above had failed. He opined that Mr Tzivanopoulos’ prognosis was poor without surgery and that he was unlikely to regain significant function or return to work without surgery.
Dr Khong opined that the main symptomatic level was C6/7. The arm and hand symptoms were coming from the C6/7, being the symptoms that were causing weakness, limited movement and inhibiting Mr Tzivanopoulos’ ability to care for himself and to which the proposed surgery was directed. He noted that the right C7 perineural injection had helped the most but could not discount the possibility that some symptoms were arising from C4/5 and C5/6. There was also a bilateral foraminal stenosis at C3/4. He preferred to commence with a single level fusion rather than to perform a three or four level fusion from the outset. He opined that whilst surgery was reasonably necessary at other levels of the cervical spine, a three or four level fusion carried a much higher risk of complications and failure of fusion. He recommended a C6/7 anterior cervical discectomy and fusion to address the canal stenosis and right sided foraminal stenosis.
In Dr Cochrane’s further supplementary report dated 1 April 2021, he opined that the surgery proposed by Dr Khong was not reasonably necessary as a result of the work-related injury. However, he agreed with Dr Khong that it would be reasonable to employ a C6/7 anterior cervical discectomy for compression of the nerve roots and a stenotic spinal canal, given the apparent response to the C7 nerve block. He considered that it would be inadequate treatment of Mr Tzivanopoulos’ more diffuse symptoms and that it would not likely be associated with a return to the workplace.
In his report dated 21 August 2019, Dr Bodel recommended against the widespread spinal fusion offered by Dr Singh because there were no signs of radiculopathy on clinical testing at the time of his examination and the persisting neck pain did not justify it. If localised signs of radiculopathy developed, then surgery may need to be considered. He recommended conservative treatment. Dr Bodel’s report predated Mr Tzivanopoulos’ first consultation with Dr Khong. Since his consultation with Dr Bodel, Mr Tzivanopoulos had undergone the medical imaging and conservative treatment referred to at [325] above without effective relief. In those circumstances, Dr Bodel’s report is outdated and I give it no weight in respect of the opinion expressed in relation to surgery to Mr Tzivanopoulos’ cervical spine.
I prefer the opinions expressed by Dr Khong over those of Dr Cochrane for the reasons previously stated.
Applying the principles referred to in Diab above, different treatments may qualify as ‘reasonably necessary’ and Mr Tzivanopoulos only has to establish that the treatment claimed is one of those treatments. The proposed C6/7 anterior cervical discectomy and fusion surgery is one of those treatments and I find as follows:
(a) the alternative treatment by way of conservative management, which has failed over the last three years is unlikely to be effective and on the balance of probabilities, will result in Mr Tzivanopoulos continuing to suffer the ongoing symptoms and restrictions referred to in the evidence. Without the proposed surgery, Mr Tzivanopoulos will continue to experience the debilitating arm and hand symptoms that are causing weakness, limited movement and inhibiting his ability to care for himself, whilst he continues to experience the work-related permanent aggravation, acceleration, exacerbation or deterioration of the disease process in his cervical spine;
(b) Endeavour raised the issue that the cost of the proposed surgery has to be seen as extensive and was, therefore, a relevant factor. However, that submission was not expanded upon. I reject the cost of the proposed surgery being a relevant factor in the circumstances of this case;
(c) the potential effectiveness of the proposed surgery is the best chance Mr Tzivanopoulos has of improving his current and longstanding arm and hand symptoms, improving his quality of life and perhaps, enabling him to resume some kind of suitable employment in the future;
(d) the purpose and potential effect of the proposed surgery is to alleviate the consequences of the injury as far as possible, and
(e) Dr Khong, being the treating neurosurgeon, supports the proposed surgery as being reasonably necessary and likely to be beneficial in the circumstances of this case. Dr Khong is proposing a surgery that would assist in alleviating Mr Tzivanopoulos’ debilitating arm dysfunction.
Accordingly, I find that the proposed C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Khong is reasonably necessary treatment.
I have found in favour of Mr Tzivanopoulos in respect of injury within the meaning of s 4(b)(ii) of the 1987 Act. I am satisfied that, after applying the common sense test of causation, Mr Tzivanopoulos has established that the injury deemed to have been sustained by him in the course of his employment with the respondent on 9 January 2019, namely, the permanent aggravation, acceleration, exacerbation or deterioration of the disease process in his cervical spine, materially contributed to the need for the proposed surgery.
Accordingly, I find that Mr Tzivanopoulos has discharged the onus of proving that the C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Khong is reasonably necessary treatment as a result of the injury deemed to have been sustained by him in the course of his employment with the respondent on 9 January 2019.
Entitlement to weekly benefits
The legislation and legal principles
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under the Act to the injured worker shall include weekly payments during the period of incapacity.
An assessment of Mr Tzivanopoulos’ capacity involves a consideration of whether he has no current work capacity or a current work capacity as defined in s 32A of the 1987 Act.
Section 32A of the 1987 Act defines the relevant terms as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
a. having regard to:
(i)The nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
b. regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
Section 43 of the 1987 Act in existence prior to the Workers Compensation Legislation Amendment Act 2012 and the authorities suggested that regard was to be had to “the realities of the labour market in which the employee was working or might reasonably be expected to work”.[136]
[136] Arnott's Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171.
Since the Workers Compensation Legislation Amendment Act 2012, it is clear that ‘total incapacity’ differs from ‘no current work capacity’. ‘No current work capacity’ requires a consideration of the worker’s capacity to undertake not only his or her pre-injury duties, but also suitable employment, irrespective of its availability. This was confirmed by Roche DP in Mid North Coast Local Health District v De Boer[137]and in Wollongong Nursing Home Pty Ltd v Dewar[138] (Dewar).
[137] Mid North Coast Local Health District v De Boer [2013] NSWWCCPD 41.
[138] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
In Dewar, Roche DP stated:
“… employment for which the worker is currently suited is determined ‘regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is ‘suited’ for suitable employment.[139]
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ … However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”[140]
[139] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [56].
[140] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [57]-[60].
Endeavour’s submissions
I will now refer to Endeavour’s principal submissions in relation to this issue.
There was medical certification certifying that Mr Tzivanopoulos had no current work capacity. There were no reports from the doctors who issued the certificates to underpin the reasons behind the certificates issued. The medical certificates on their own cannot be given any weight.
Dr Khong and Dr Bodel opine that Mr Tzivanopoulos has very little current work capacity. Dr Cochrane disagrees and thought that there should have been some improvement, as in the past, that is, symptoms and capacity waxing and waning since January 2019.
The Commission cannot be satisfied that there is an ongoing incapacity due to any work-related injury and as opined by Dr Cochrane, even if there were some form of symptomatic aggravations, they have long ceased and it is the underlying condition in Mr Tzivanopoulos’ cervical spine that is creating any incapacity for work.
Dr Cochrane opined that he did not believe that Mr Tzivanopoulos could go back to his full-time unrestricted duties but the Commission is mandated by Parliament to consider the various factors in s 32A of the 1987 Act.
Mr Tzivanopoulos is not an old person. He is about 46 years of age. He is well qualified and has an engineering degree. He is clearly a man of high intelligence and high qualification. That being the case, there is a wide range of jobs on the open labour market that would not permit or force him to be constantly engaged with his neck in a fixed position, such as reception work, where he would have a headset for answering a telephone and he could move around or stand up and sit down from time to time. Whether the work is available or not is to be disregarded under s 32A of the 1987 Act. It is entirely a capacity argument. The availability of the work, where the work might be located and even his pre-injury employment is to be disregarded. What one must do is consider his capacity from January 2019 and apply that in dollar terms to the requisite PIAWE.
Mr Tzivanopoulos has the capacity to earn, at least, his pre-injury earnings as they are capped by the statute.
Mr Tzivanopoulos’ submissions
I will now refer to Mr Tzivanopoulos’ principal submissions in relation to this issue.
Mr Tzivanopoulos’ certificates of capacity disclosed that throughout 2019 and 2020, he had no capacity for employment.
In 2020, Dr Khong observed that Mr Tzivanopoulos’ pain was bilateral in the neck, radiating to both trapezius; left shoulder pain; pain down to the lateral left forearm; right shoulder pain; pain through the right triceps; pain through to the right hand and all of the fingers, with numbness in the right thumb and index finger; and spasms in the right deltoid and right pectoralis. He described him as having weakness in both arms, worse on the left.
In April 2021, Dr Khong reported a steady deterioration of Mr Tzivanopoulos’ neurological function in the upper limbs, to the extent that he had difficulty washing his hair and wiping after bowel movements.
Mr Tzivanopoulos’ evidence was that by late 2018, his neck pain was constant, as was the numbness into his hands and arms. He could not concentrate and was avoiding some work tasks that required him to perform more head and neck movements. He could barely sleep at night and came to work feeling exhausted every day.
Mr Tzivanopoulos is plainly unfit for any work until he undergoes the proposed fusion surgery on his cervical spine in order to restore some of the function of his arms.
Endeavour relied on the opinion of Dr Cochrane, who suggested that there was some residual work capacity. Dr Cochrane did not provide an explanation. He did not address Mr Tzivanopoulos’ extreme pain, lack of arm strength and power, inability to sleep and be sufficiently rested and focused. Dr Cochrane did not address the fact that any desk or computer-based work is literally work of the kind that produced the initial aggravation. Dr Cochrane did not describe any actual suitable employment to which Mr Tzivanopoulos might be directed, that would not be positively worse for him than simply doing nothing at all.
Since 9 January 2019, Mr Tzivanopoulos has been totally unfit to perform any kind of work and should be entitled to an award at the statutory maximum for the entire period pursuant to ss 36 and 37 of the 1987 Act.
Consideration and findings
If Mr Tzivanopoulos has ‘no current work capacity’ as has been submitted by his counsel, I must assess whether he was able to return to both his pre-injury duties and suitable employment since 10 January 2019.
The standard medical certificate issued by Dr Das dated 11 January 2019 certified Mr Tzivanopoulos unfit for work from 14 January 2019 to 18 January 2019.[141]
[141] ARD at page 111.
The standard medical certificates issued by Dr Nair dated 22 January 2019,[142] 5 February 2019[143] and 4 March 2019[144] certified Mr Tzivanopoulos unfit for work from 21 January 2019 to 3 April 2019.
[142] ARD at page 115.
[143] ARD at page 116.
[144] ARD at page 117.
On 11 April 2019, Dr Singh opined that Mr Tzivanopoulos had significant symptoms secondary to multi-level cervical stenosis; spinal cord compression; and radicular symptoms from foraminal stenosis, mainly at C4/5 as well as C5/6 and C6/7. He recommended surgery in the form of a decompression and fusion from C4 to C7 because he did not believe there was much room for conservative treatment.
The certificates of capacity issued by the general practitioners at Workers Doctors certified Mr Tzivanopoulos as having no current capacity for any work from 10 January 2019 to 13 October 2021.[145]
[145] ARD at pages 171-245.
Endeavour’s injury management plans dated 17 May 2019[146] and 12 August 2019[147] acknowledged that Mr Tzivanopoulos’ had no current work capacity for any employment as certified by Dr Calvache-Rubio. Liability was ultimately disputed by Endeavour on 1 July 2019.
[146] ARD at pages 130-134.
[147] ARD at pages 135-138.
On 21 August 2019, Dr Bodel opined that, at the time of his consultation with Mr Tzivanopoulos, the latter was unfit for work, had a restricted capacity for work and that his ability to find work on the open labour market had been compromised. Dr Bodel opined that improved physical fitness levels would enhance Mr Tzivanopoulos’ ability to return to the workforce after further medical management. He opined that he should be able to contemplate a graded introduction to part-time lighter duty work with improved physical fitness levels and upgrade to his pre-injury style of work. Dr Bodel’s report predated Mr Tzivanopoulos’ first consultation with Dr Khong. Since his consultation with Dr Bodel, Mr Tzivanopoulos had undergone the medical imaging and conservative treatment referred to at [325] above without effective relief. In those circumstances, Dr Bodel’s report is outdated and I give it little weight in respect of the opinion expressed in relation to work capacity since his consultation with Mr Tzivanopoulos.
On 8 March 2021, Dr Khong opined that Mr Tzivanopoulos had complained of persistent neck pain and right arm symptoms and had no capacity to work. Mr Tzivanopoulos first consulted Dr Khong on 30 August 2019. Despite Dr Singh’s recommendation for surgery, Dr Khong embarked on a conservative path. The conservative treatment referred to in the medical evidence was ineffective. The clinical records produced by Dr Khong demonstrated a deterioration in Mr Tzivanopoulos’ symptoms of neck pain, bilateral arm pain and weakness that culminated in a recommendation that he undergo a C6/7 anterior cervical discectomy and fusion.
On 16 August 2021, Dr Cochrane opined that Mr Tzivanopoulos’ significant neck pain and non-verifiable radicular symptoms in the upper limbs, would have precluded him from his full pre-injury duties from about 9 January 2019. He opined that he would have had, from that time, the ability to perform light duties on a part-time basis, four hours per day, five days per week with a 5kg lifting restriction in the upper limbs and the ability to change activities and posture every 20 minutes as required, including standing and walking away from the workstation, with the provision of a sit/stand workstation. A five-minute rest from all activity each hour would have been reasonable. Dr Cochrane’s opinion in respect of work capacity did not concede that it was related to a work injury but rather that it was due to the constitutional disease process in Mr Tzivanopoulos’ cervical spine.
I prefer the opinions of Dr Khong as the treating neurosurgeon, who consulted Mr Tzivanopoulos face-to-face or by telehealth on the numerous occasions referred to in his clinical records from 30 August 2019. Dr Khong was in a better position than the forensic medical specialists to assess Mr Tzivanopoulos’ medical progress.
I am satisfied on the evidence and for the reasons referred to above that Mr Tzivanopoulos would have had no capacity for his pre-injury duties for the period claimed and beyond and I find accordingly.
The next matter for consideration is whether Mr Tzivanopoulos was fit for suitable employment as defined in s 32A of the 1987 Act. This requires a consideration of the nature of the incapacity and the details provided in medical information, the worker’s age, education, skills and work experience, any return to work plan and any occupational rehabilitation services that have been provided, irrespective of whether the work is available to him or of a type or nature that is generally available in the employment market.
Mr Tzivanopoulos is a 48-year-old man who attended university and attained a Bachelor of Electrical Engineering degree. Thereafter, he was employed as an electrical engineer until he commenced his employment with Endeavour on 28 May 2011. He has suffered and continues to suffer the significant worsening neck pain and related symptoms referred to in the medical evidence, particularly in the evidence of Dr Khong, which I accept. Mr Tzivanopoulos requires surgery to his cervical spine.
Having regard to Mr Tzivanopoulos’ statement, the preponderance of the medical evidence as to his capacity, his age, skills, work experience and the other relevant factors to be considered in accordance with s 32A of the 1987 Act, I am satisfied on the balance of probabilities and find that he had no current work capacity in the period 10 January 2019 to date.
The PIAWE were agreed at $2,859.51. This amount exceeds the statutory maximum referred to in s 34 of the 1987 Act. The PIAWE are indexed every six months in accordance with s 82A of the 1987 Act.
Section 35(1) of the 1987 Act provides definitions of the terminology used in the quantification of an injured worker’s weekly payments as follows:
“‘AWE’ means the worker's pre-injury average weekly earnings.
‘D’ (or a ‘deductible amount’ ) means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker.
‘E’ means the amount to be taken into account as the worker's earnings after the injury, calculated as whichever of the following is the greater amount:
(a)the amount the worker is able to earn in suitable employment,
(b)the workers current weekly earnings.
‘MAX’ means the maximum weekly compensation amount.”
Weekly payments during the initial aggregate period of 13 weeks (the first entitlement period) is governed by s 36 of the 1987 Act, which provides:
“36 Weekly payments in first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of:
(a)(AWE x 95%) – D, or
(b)MAX – D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the rate of:
(a)(AWE x 95%) – (E + D), or
(b)MAX – (E + D),
whichever is the lesser.”
In accordance with s 36(1) of the 1987 Act, Mr Tzivanopoulos’ entitlement to weekly compensation during the first entitlement period from 10 January 2019 to 11 April 2019 is as follows:
MAX – (E + D)
$2,145.30 - $0 = $2,145.30 per week from 10 January 2019 to 31 March 2019.
$2,177.40 - $0 = $2,177.40 per week from 1 April 2019 to 10 April 2019.
The second entitlement period is that of 117 weeks, postdating the initial 13 weeks. Weekly payments during the second entitlement period is governed by s 37 of the 1987 Act, which provides:
“37 Weekly payments in second entitlement period (weeks 14-130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a)(AWE x 80%) – D), or
(b)MAX – D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a)(AWE x 95%) – (E + D), or
(b)MAX – (E + D),
whichever is the lesser.
(3) The 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 rate of:
(a)(AWE x 80%) – (E + D), or
(b)MAX – (E + D),
whichever is the lesser.”
In accordance with s 37(1) of the 1987 Act, Mr Tzivanopoulos’ entitlement to weekly compensation during the second entitlement period from 12 April 2019 is as follows:
MAX - D
$2,177.40 - $0 = $2,177.40 per week from 11 April 2019 to 30 September 2019.
$2,195.70 - $0 = $2,195.70 per week from 1 October 2019 to 31 March 2020.
$2,224.00 - $0 = $2,224.00 per week from 1 April 2020 to 30 September 2020.
$2,242.40 - $0 = $2,242.40 per week from 1 October 2020 to 31 March 2021.$2,254.60 - $0 = $2,254.60 per week from 1 April 2021 until such weekly payments are suspended, varied or terminated under the provisions of the 1987 Act.
Mr Tzivanopoulos will be entitled to an award in accordance with the above calculations. I grant the parties liberty to apply within 14 days in relation to the calculation of weekly benefits.
Other treatment and related expenses
The legal principles
Section 59 of the 1987 Act provides definitions of certain medical and related treatment, services and rehabilitation.
Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service be provided, then a worker’s employer is liable to pay the cost of such treatment or service. In addition, the employer is liable to pay the related travel expenses specified in s 60(2) of the 1987 Act.
Findings
The parties agreed that a general order under s 60 of the 1987 Act is appropriate if Mr Tzivanopoulos’ received an award in his favour.
Having received an award in his favour, Mr Tzivanopoulos is entitled to recover the cost of reasonably necessary medical, hospital and related expenses under s 60 of the 1987 Act on production of accounts and receipts and I make a general order in this regard.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.
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