Van den Hout v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Van den Hout v Woolworths Group Limited [2022] NSWPIC 307
APPLICANT:	Helena (Helen) Van den Hout
RESPONDENT:	Woolworths Group Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	20 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Weekly benefits claim and claim for future surgery surrounding allegations of injury to multiple body systems; Held– the applicant suffered injuries by way of aggravation to underlying conditions to her left hip and left knee in the course of her employment with the respondent, with a deemed date of injury of 7 October 2021; Federal Broom Co Pty Ltd v Semlitch; Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd; AV v AW discussed and followed; the applicant has not discharged the onus of proof with respect to the claims for injury to the lumbar spine, left upper extremity, cervical spine, left hip, bilateral wrists and left ankle; award for the respondent on the injuries claimed in (ii) above; as a result of the injuries referred to in (i) above, the applicant is totally incapacitated for employment; the proposed surgeries to the applicant’s right knee and right hip are reasonably necessary as a result of the injury referred to in (i) above; Taxis Combined Services(Victoria) Pty Ltd v Schokman applied; respondent to pay for the costs of and incidental to the proposed surgeries; respondent to pay the applicant weekly compensation in accordance with the amended claim.
DETERMINATIONS MADE:

Leave is granted to amend the Application to claim weekly compensation from 11 May 2022 to date and continuing at the rate of $506.37 per week.
The applicant suffered injuries by way of aggravation to underlying conditions to her right hip and right lower extremity (knee) in the course of her employment with the respondent, with a deemed date of injury of 7 October 2021.
Award for the respondent on the claimed injuries to the lumbar spine, left upper extremity (shoulder), cervical spine, left hip, bilateral wrists and left ankle.
At the date of injury, the applicant’s pre-injury average weekly earnings were $506.37 per week.
As a result of the injuries referred to in (1) above, the applicant has suffered and continues to suffer total incapacity for employment from 11 May 2022 to date and continuing.
The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $405.09 per week.
The proposed surgeries to the applicant’s right knee and right hip are reasonably necessary as a result of her workplace injuries.
The respondent is to pay the costs of and incidental to the proposed right total hip replacement surgery and the proposed right total knee replacement surgery proposed by Dr Soo in his quote dated 16 December 2021.

STATEMENT OF REASONS

BACKGROUND

Helena (Helen) Van den Hout (the applicant) brings proceedings seeking payment of weekly benefits and medical expenses as a result of a disease injury to her right knee and right hip said to have been suffered in the course of her employment with the Woolworths Group Ltd (the respondent).
There is no question the applicant remains totally incapacitated for employment and has been so incapacitated for the full extent of the period claimed. Likewise, there is no issue that the proposed right total knee replacement and right hip replacement surgeries are necessary from a medical point of view.
The dispute in this matter surrounds whether the need for the applicant’s surgery and the total incapacity suffered by her have been brought about by a work-related disease injury or alternatively, whether the incapacity and requirement for surgery had been brought about by non-work-related factors.
It should also be noted that the applicant pleads injury to her lumbar spine, left shoulder, left hip, cervical spine, wrists and left ankle in addition to her right hip and knee, however, surprisingly little time at the hearing was devoted to those body systems.
The parties agree that the applicant’s ongoing incapacity is primarily brought about by her right knee and right hip injuries.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered injury by way of aggravation to a disease process as a result of her employment with the respondent with respect to the body systems claim, and
(b) whether the accepted requirement for the right hip and right knee surgeries are brought about by any work-related injury.
As noted, there is no issue the applicant remains totally incapacitated or that the requested surgeries are a medical necessity.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing on 20 May 2022. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr Loukas of counsel instructed by Mr Sawyer appeared for the applicant. Ms Warren of counsel instructed by Mr Wilkins appeared for the respondent.
At the hearing, without objection the applicant amended her claim for weekly benefits to run from 11 May 2022 to date and continuing referable to agreed pre-injury average weekly earnings (PIAWE) of $506.37 per week. As the period claimed is outside the initial 13 week period, the applicant’s claimed weekly compensation calculated pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act) is $405.09 per week.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    respondent’s Application to Admit Late Documents (AALD) dated 12 May 2022, and
(d)    applicant’s AALD dated 20 May 2022.

Oral evidence

12.There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant sustained an injury by way of aggravation to a disease process

The applicant claims injury pursuant to section 4(b)(ii) of the 1987 Act. That section relevantly provides:
“In this act: injury means
a. the personal injury arising out of arising out of during the course of employment,
b. includes a ’disease injury’, which means:
i.…
ii.the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”

14.In Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD71, Roche DP said at [66]:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by the increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch (1964) CLR 626).”

There is a long line of authority to the effect that in examining the main contributing factor of an aggravation of a disease, one must look at the underlying cause of the aggravation rather than the underlying disease condition itself: see Ariton Mitich v Rail Corporation of NSW (Matter Number 8497 of 2013, 8 April 2014); and Mylonas v The Star Pty Ltd [2014] NSWWCC 174, to name but two. Those decisions are consistent with that of the High Court in Semlitch which established that an exacerbation of the disease takes place where the experience of the disease by the patient is increased or intensified by virtue of the symptoms.
In Semlitch, Kitto J made it clear that the causal question is directed to the individual and the effect of the disease upon that individual rather than being concerned with the underlying mechanism itself. That is, whether the symptoms have worsened. The authority in Semlitch has been followed by the Court of Appeal in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWALR 606 (Mecha).
The effect of these authorities is that the proper test is whether an alleged aggravation has impacted the individual concerned. It is not necessary for the underlying disease itself to have been made worse.
In examining the main contributing factor of an aggravation, the authorities establish that “main contributing factor” means “chief” or “principal”: see Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 per Arbitrator Capel (as he then was). That test was essentially approved by the Snell DP in AV v AW [2020] NSWWCCPD 9 where the Deputy President noted the requirement for main contributing factor is more stringent than the applicable test of substantial contributing factor in section 9A of the 1987 Act. The Deputy President noted that the phrase “main contributing factor” means there can only one such factor.
The test of main contributing factor is one of causation. In the workers’ compensation context, the requirement for causation is set out in the oft-cited passage of Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). That is to say, what is required is a common sense evaluation of the causal chain.
Although the applicant claimed injury with respect to multiple body systems, her case was that her right knee and right hip have essentially caused her ongoing impairment. Little time was taken at the hearing with the other alleged injuries to the lumbar spine, left shoulder, left hip, cervical spine, wrists and left ankle.
For reasons which will be stated later, I do not believe the applicant has discharged her onus of proof this with respect to the claimed body systems other than the right knee and right hip.
In relation to the right knee and hip, the applicant relies on the aggravations said to have been caused by the nature and conditions of her employment. The applicant’s uncontested evidence contained within her statement is that she worked as a permanent casual as a night filler. That work involved repetitive lifting, bending, carrying and moving including working by way of bending and also lifting above head height.
It is apparent from the applicant’s statement that she carried out this work regularly and repetitively, and I have no difficulty in finding it was indeed very heavy work. That much is made clear by the respondent’s own workplace assessment, which set out at page 68 and following of the Application the tasks performed by a night filler. Those tasks required, on the face of the respondent’s own document, constant dynamic standing, frequent trunk rotation and lumbar flexion, frequent forward reaching bilaterally and unilaterally, frequent above shoulder reaching bilateral and unilateral, constant gripping and grasping, frequent squatting and kneeling, frequent constant lifting and carrying of loads, occasional pushing and pulling of cages from dock to aisles.
As Mr Loukas noted, the definition of “frequent” in the respondent’s own workplace assessment document found at page 69 of the Application is between 34 and 66% of an eight-hour day, or once every two minutes. In other words, he submitted the applicant had been subjected to heavy lifting, bending, twisting, squatting, kneeling, load carrying and trunk rotation in her employment constantly since 2015.
Assoc Prof Miniter, Independent Medical Examiner (IME) for the respondent provided a report in which he noted the presence of pre-existing arthritis in both the applicant’s right knee and right hip. The applicant’s case does not, however, deny the presence of this condition. Indeed, it is predicated upon it. Assoc Prof Miniter stated in his report dated 11 May 2022:
“Clearly, I have been able to evaluate this patient clinically that there is sufficient information to determine that she has osteoarthritic change affecting the right hip perhaps due to a vascular necrosis. The genesis of the vascular necrosis is usually idiopathic in this age group but can be associated with significant steroid administration. I noted in the general practitioner’s notes there is a reference to the fact that she has taken steroids as well as Symbicort inhalers at various times during her presentation to this particular practice.”
Assoc Prof Miniter concluded:
“Please note that as far as I could determine, the performance of her job has not led to the pathology in question. In my experience, it is common for patients with patellofemoral and lateral compartment disease of the knee to present over a period of time and then to suddenly become much more dramatically affected. This would appear to be the case in this situation.
In addition, the osteoarthritic change in the right hip appears to be longstanding but the comment that she may have a vascular necrosis could determine the reason that she has had such rapid deterioration in functional capacity. Based on the investigations, I can well believe that she has significant disease and that she has significant functional incapacity.”
Assoc Prof Miniter was then asked specific questions and concluded there was no evidence of any injury, rather he stated the applicant had genuine osteoarthritic pathology at the right hip and the right knee. He concluded the injuries are not consistent with the mechanism of injury alleged, and there is no evidence the applicant had any injury by way of aggravation of a disease process. Dr Miniter stated:
“I could see no evidence of a disease process that has been aggravated in a meaningful sense. She appears to have worked reasonably effectively up until October and if one was to opine that aggravation has occurred over a long period of time, then one is surprised that she has not taken time away from the workplace prior to that stage.”
With respect to Assoc Prof Miniter, that opinion rather misses the point of the fact-finding exercise. The applicant’s underlying condition is not in issue. It is the cause of the worsening symptoms of that condition which is in issue, as is consistent with the case law cited above.
Assoc Prof Miniter’s opinion stands alone in this matter, and in stark contrast to both treating and other IME opinion. He says he can find no basis for any aggravation to have taken place in a meaningful sense, however, he appears not to have taken into account the very physically demanding nature and conditions of the applicant’s duties.
Assoc Prof Miniter sees fit to criticise Dr Singh, orthopaedic surgeon who reviewed the applicant on 25 November 2021, and found the applicant’s employment to be the main contributing factor to her presentation. Assoc Prof Miniter says he is taken by surprise that Dr Singh would conclude “she was asymptomatic before her job as a night filler and before the work-related injury when she had to work more because of short staffing and increased demands of work.”
With respect, however, that history taken by Dr Singh is broadly correct. There is no suggestion the applicant suffered ongoing issues with either her right knee or right hip before she began undertaking the heavy duties in the course of her employment with the respondent.
Ms Warren noted there was an entry some years before the alleged date of injury of problems with the right hip, however, they were well before the applicant began working with the respondent and there is no suggestion those body parts were an impediment to the applicant carrying out her duties with the respondent until the lead up to the alleged deemed date of injury. There was a referral for an ultrasound to the right hip in 2008, however, there is no issue the applicant was able to carry out her heavy and repetitive duties for a number of years despite the pre-existing conditions to her hip and knee. The relevant question is whether there has been an aggravation – that is, a worsening in the applicant’s condition – and if so, what has caused it?
In my opinion, the evidence in this matter is overwhelming. Each of Dr Singh, treating surgeon Dr Soo, general practitioner Dr Lim and general practitioner Dr Castleman all note the presence of aggravations after the applicant commenced employment with the respondent, and as a result of the duties which she undertook. Assoc Prof Miniter’s view is essentially a bare ipse dixit statement that the condition was pre-existing, a fact which is not in issue to begin with. Moreover, in focusing on the cause of the underlying pathology, Assoc Prof Miniter has not properly addressed the cause of the aggravation rather than the underlying nature of the pathology. To the extent he does deal with questions of aggravation, Assoc Prof Miniter’s analysis is at best fleeting and he instead simply notes the applicant worked reasonably effectively up until the point where her condition overtook her. He provides no explanation as to the cause of that condition worsening, and on balance, I do not accept his views, preferring instead the opinions of Drs Soo, Singh and Lim contained in their reports.
Dr Soo, treating surgeon takes a history from the applicant of experiencing right and left hip pain for over 12 months in the lead up to his examination of her in October and December 2021. In his report to the applicant’s solicitors dated 16 December 2021, Dr Soo noted:
“Helena sees me in the rooms with ongoing severe right hip and right knee pain, deformity and dysfunction as a result of the nature of her work as a night filler for Woolworths which she has been doing for over five years. Her year prior to her injury, she had developed pain to her hips which was diagnosed as bursitis to her hips by her GP and was treated with cortisone injections to her bursa which did not help her pain. On 6/10/2021, she was at work when she developed severe pain to her right hip and right knee …
Prior to working as a night filler for Woolworths, Helena denies any previous history of pain or injury to her hips or her knees. The nature of her job is very physical and involves repetitive bending, squatting, lifting and twisting. She reports specific incident on 6/10/2021 when she experienced severe pain to her right hip and right knee. I am thus of the opinion that her job as a night filler for Woolworths is a substantial contributing factor towards the aggravation of her underlying osteoarthritis to her right hip and right knee, her current incapacity and disability and her need for treatment of her injuries to her right hip and right knee.”
I note Dr Soo makes reference to a substantial contributing factor rather than main contributing factor. It is, however, apparent in my view from an examination of Dr Soo’s full report that he plainly attributes worsening symptoms and the aggravation of the applicant’s underlying condition to her work and the duties which she carried out. That opinion is supported by Dr Singh, IME who noted:
“work is the main contributing factor to her current condition. She was asymptomatic before her job as a night filler and before the work-related injury when she had to work more because of short staffing and increased demands at work. While she may have had some previously asymptomatic disease, this was aggravated by the nature and conditions of employment.”
On balance, applying a common-sense test as to the cause of the aggravation of the applicant’s underlying condition, I am comfortably satisfied on the balance of probabilities that the applicant’s aggravation to her right knee and right hip were brought about by her workplace duties, which were the main contributing factor to those aggravations.
The difficulty for the respondent in relying upon factors such as the right hip ultrasound is the applicant was able to carry out duties which were, on the respondent’s own case, repetitive, heavy and difficult. She did so for approximately five years or more until the onset of her symptoms rendered her incapacitated for employment. As noted, it is the cause of the aggravation which must be examined, not of the underlying condition.

Ms Warren took the Commission to a number of clinical entries concerning body systems claimed by the applicant other than her right knee and right hip. They demonstrate, in my view, a more consistent and longstanding pattern of pre-injury issues with those body systems than is apparent with the right knee and right hip. The applicant carries the onus of proof. There is precious little medical material which addresses causation with respect to the lumbar spine, left upper extremity (shoulder), cervical spine, left hip, bilateral wrists and left ankle. That is not stated as a criticism, as plainly the applicant’s primary issues are with her right knee and right hip, as is evidenced by those body systems requiring surgery. However, those body systems have been pleaded, and the applicant must discharge her onus of proof with respect to them.
I am persuaded on the balance of probabilities that the applicant has not discharged her onus of proof in establishing work-related aggravations to her lumbar spine, left shoulder, left hip, cervical spine, left ankle and wrists. The applicant’s evidence is simply not strong enough to ground a finding on the balance of probabilities of work-related aggravation to those body parts. That stands in contrast with the right knee and right hip, which are the subject of detailed specialist and general practitioner opinion in support of work-related aggravations to them. There will, accordingly, be awards for the respondent with respect to the claimed injuries of the lumbar spine, left shoulder, left hip, cervical spine, left ankle and wrists.

Weekly compensation claim

At the hearing, Mr Loukas amended the claim for weekly compensation to commence from 11 May 2022 to date and continuing. There is no issue the applicant at this point in time remains totally incapacitated for employment, nor is there any issue at her PIAWE total of $506.37 per week. There is also no issue that the incapacity which the applicant suffers is caused by the conditions to her right knee and right hip primarily. This being so, having found the cause of the aggravations which give rise to the incapacity are work-related, the Commission will make orders pursuant to section 37 of the 1987 Act that the respondent pay the applicant weekly compensation at the rate of $405.09 per week from 11 May 2022 to date and continuing, being 80% of her PIAWE.

Requirement for knee and hip surgery

As noted, there is no question that from a medical point of view the applicant requires both knee and hip surgeries. The only issue in this matter was whether the applicant firstly suffered a work-related aggravation, and if so, whether those aggravations brought about the requirement for the surgery.
The question of what is required to establish causation in relation to medical treatment is summarised in the decision of Taxis Combined Services(Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 (Schokman). In that case, the worker was a taxi driver who was assaulted in the course of his employment. He suffered extensive facial injuries, which eventually resulted in the loss of four teeth. At the time of his treatment, it was noted that Mr Schokman had pre-existing periodontitis unrelated to the assault. He was fitted with a four-unit fixed bridge, which broke in 2012.
In examining Mr Schokman, a further complication of peri-implantitis was identified which also required treatment. The insurer denied liability for treatment related to the peri-implantitis and periodontitis, in part due to Mr Schokman’s pre-existing periodontitis, as well as his poor oral hygiene and history of smoking.
Roche DP confirmed the arbitrator’s decision finding the treatment was reasonably necessary as a result of the injury. After referring to the decision in ACQ v Cook that a condition may have multiple causes, the Deputy President stated on causation:
“It follows that, even if it were accepted that the peri-implantitis was ‘caused’ (in the sense of having been materially contributed to) by the non-work factors listed by Dr Baldwin, that would not prevent the finding that, as a matter of common sense, the need for the proposed treatment has arisen ‘as a result of’ the injury. That is because, as Dr Roeslar explained, the peri-implantitis is ‘only there because Mr Schokman has implants’. This is not a matter of merely saying that ‘but for’ the presence of the implants, Mr Schokman would not have the peri-implantitis, but that is undoubtedly true. It is a matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment, (because it brought about the need for the implants), even if other factors were also present that may have also contributed to that need.” (emphasis added)
In other words, it is only necessary for the work-related injury to be a material cause of the need for the treatment, not a substantial factor to that need or indeed the main contributing factor.
In this matter, in my view, the medical evidence is overwhelming. It is symptomology which gives rise to a need for medical treatment, not a medical condition itself which may otherwise be asymptomatic or tolerable. The applicant’s injuries in the course of her employment materially contributed to the need for the proposed surgery to the applicant’s right knee and right hip, and accordingly, the respondent will be ordered to pay the costs of and incidental to those proposed surgeries.

SUMMARY

For the above reasons, the Commission will make the findings that are all set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 307

20 June 2022