Van Den Hout v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Van Den Hout v Woolworths Group Ltd [2024] NSWPIC 522
APPLICANT:	Helena Marie Van Den Hout
RESPONDENT:	Woolworths Group Limited
MEMBER:	Sophie Jones
DATE OF DECISION:	19 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained a consequential condition at her lumbar spine as a result of the workplace injuries to her right hip and right knee; whether the treatment expenses claimed for proposed lumbar spine surgery are reasonably necessary; Held – the applicant did not sustain a consequential condition at her lumbar spine; the medical treatment expenses claimed for proposed lumbar spine surgery are not reasonably necessary; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant did not sustain a consequential condition to her lumbar spine resulting from her accepted right hip and right knee injuries. 2. The medical treatment expenses claimed for the proposed lumbar spine surgery are not reasonably necessary as a result of an injury received by the applicant pursuant to s 60 of the Workers Compensation Act 1987. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Helena van den Hout (the applicant) was employed by Woolworths Group Limited (the respondent) as a night filler, commencing in late 2015 or early 2016 and working between 20 to 25 hours per week.
The applicant previously made a claim on the insurer in relation to injuries to her right hip, right knee, lumbar spine, left shoulder, cervical spine, left hip, bilateral wrists and left ankle. These injuries were claimed as “disease injuries” as defined in s 4(b) of the Workers Compensation Act 1987 (the 1987 Act), with a deemed date of injury of 7 October 2021.
In earlier proceedings before the Personal Injury Commission (Commission) related to this matter, it was determined that the applicant suffered injuries by way of aggravation to underlying conditions to her right hip and right knee in the course of her employment with the respondent with a deemed date of injury of 7 October 2021, but there was an award for the respondent in respect of the claimed injuries to the lumbar spine, left shoulder, cervical spine, left hip, bilateral wrists and left ankle.[1]
[1] Personal Injury Commission matter W681/22, Determination of Member Cameron Burge, 20 June 2022. Reply page 23.
The applicant underwent right hip replacement surgery in July 2022 and a right total knee replacement in September 2022, which were approved by the insurer.
Following these surgeries, the applicant made a claim on the insurer for a consequential condition at her lumbar spine and sought compensation for the cost of proposed lumbar spine surgery.
The insurer issued a number of notices pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), most recently on 30 April 2024, disputing liability for the claimed lumbar spine consequential condition and the surgery proposed by Dr Bhisham Singh.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (Application) in the Commission on 12 July 2024.
The applicant seeks compensation pursuant to s 60 of the 1987 Act for the cost of lumbar spine surgery proposed by Dr Bhisham Singh in a report dated 18 January 2024, specified as Stage 1: L4-S1 ALIF/ATP and Stage 2: L4-S1 Posterior spinal fusion.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential condition to her lumbar spine resulting from her accepted right hip and right knee injuries, and
(b) whether the medical treatment expenses claimed for the lumbar spine surgery proposed by Dr Bhisham Singh in a report dated 18 January 2024 are reasonably necessary as a result of an injury received by the applicant pursuant to s 60 of the 1987 Act.
The parties confirmed that s 59A of the 1987 Act is not in issue in these proceedings.
The respondent confirmed that the issue of estoppel raised in the s 78 notice dated 30 April 2024 is not pressed as the claimed consequential condition to the lumbar spine has not been the subject of a previous determination.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 2 September 2024, conducted by way of videoconference. The applicant was represented by Mr Necovski of counsel, instructed by Mr Sawers and Mr Taljaard of Walker Law Group. The respondent was represented by Mr Stiles of counsel, instructed by Ms Dunn of BBW Lawyers. The applicant attended the videoconference and representatives from the insurer and Woolworths Group Limited were also in attendance.
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.

EVIDENCE

Oral evidence

Neither party applied to adduce oral evidence or cross-examine any witness.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.
Whilst I have had regard to all the evidence, I have summarised below the evidence that directly relates to the issues in dispute.

Applicant’s statement

The applicant’s evidence is set out in signed statements dated 2 February 2022[2] and 5 July 2024.[3]
[2] Application pages 3-5.
[3] Application pages 1-2.
In her statement dated 2 February 2022, the applicant sets out the nature of her duties as a night filler. Under the heading, “Injury details”, the applicant states:
“I have been diagnosed with right hip severe arthritis with partial AVN; right knee degeneration; lumbar spine degeneration; left shoulder degeneration; left hip aggravation; cervical spine degeneration; bilateral wrists degeneration and left ankle degeneration.”
In her supplementary statement dated 5 July 2024, the applicant states that she had a right hip replacement in July 2022 and right knee replacement in September 2022. The applicant advises:
“Because of these surgeries, I now have a leg length discrepancy, with my left leg being shorter than my right. I have to walk abnormally due to my leg length discrepancy. I also have to adjust my posture constantly because of my right knee and right hip injuries, which causes my back to hurt. I tried going back to work approximately 1 year after my knee surgery, but could not last more than one shift due to significant lower back pain. Due to my altered gait my lower back pain and the pain and weakness in my left leg have increased substantially. I still struggle with lower back pain, especially on the left side. The pain spreads to my lower sacrum, left buttock, lateral left thigh, and sometimes down to my foot and toes. I get pins and needles in my left buttock and left thigh. I have very limited movement in my lower back. I can only walk about 50 meters before needing to stop due to the pain in my back and leg. I have had multiple falls due to my left leg giving way.”

Treating evidence

Treating medical reports were in evidence from nominated treating doctor Dr Eric Lim,[4] shoulder and knee surgeon Dr Gavin Soo[5] and orthopaedic spine surgeon Dr Bhisham Singh.[6]
[4] Application pages 76-77; 89-90; 119-120; 125-126.
[5] Application pages 78-81; 91-92; 94-95; 99-100; 104-405; 107-109; 114-118.
[6] Application pages 67-69; 82-85; 121-123.

Dr Lim

In his initial report dated 27 October 2021,[7] Dr Lim records the applicant’s symptoms as including “Lower back pain radiating down bilateral legs” and diagnosed “Lumbar spine degeneration.” The same symptoms and diagnosis are recorded in Dr Lim’s report dated 25 November 2021.[8]
[7] Application pages 125-126.
[8] Application pages 119-120.
In Dr Lim’s report dated 12 March 2024,[9] symptomology is again described as “Lower back pain radiating down bilateral legs” and the diagnosis is given as “Lumbar spine multilevel disc bulge, and severe multileve face [sic] joint OA contacting L5/S1 nerve root (MRI12/2023).”
[9] Application pages 89-90.
Dr Lim states:
“She has sustained neck/L) shoulder, wrist, Back, R) hip, R) knee, L) ankle injuries due to repetitive lifting, twisting and bending at work. Work was the main contributing factor for the injury(ies).
As a result of her work-related lower back and R) hip injuries, she has walked with altered gait, causing L) hip aggravation.”

Dr Soo

In Dr Soo’s first report dated 16 December 2021,[10] his clinical examination records, “Leg lengths - apparent right leg length discrepancy 1.5cm short.”
[10] Application pages 114-116.
Dr Soo performed the applicant’s right total hip replacement surgery on 1 July 2022 and right total knee replacement surgery on 9 September 2022.
In a medical questionnaire dated 14 February 2024,[11] Dr Soo states, in answer to the question, “Does our client’s left hip condition and lower back result from her accepted right knee and right hip claim”:
“Yes. Only since her right hip replacement and right knee replacement has Helena complained of pain to the left hip or her lower back. It is clear that her trochanteric bursitis and aggravation of her underlying degenerative Lumbar spine pathology have developed as a result of overcompensation following her right lower limb surgeries and her prolonged altered gait pattern. She also has an apparent leg length discrepancy since her surgeries which have resulted in the need for a shoe raise in the left shoe. This leg length discrepancy has added to her left hip and lower back aggravation.”
[11] Application pages 78-81.
Dr Soo further states, “Currently Helena’s main problem is her lower back pain and radicular symptoms to the left leg which result in her having falls due to the leg giving way.”

Dr Singh

Dr Singh’s report dated 18 January 2024 states:[12]
“There has been further deterioration on the left side following a right-sided knee arthroplasty and hip arthroplasty. This has left her with a leg length discrepancy of around an inch or so. This is something related to worsening of her lower back pain.
…
Significant radicular symptoms correspond to the findings of the MRI scan where there is severe stenosis at L4-5 and L5-S1 foraminal stenosis, worse on the left side corresponding to her symptoms.
…
She also needs surgery as there is no other way for conservative management in the presence of significant neurological compression resulting in poor walking distance of not more than 2 or 3 minutes. The aim of surgery is to decompress the nerves thereby improving her leg pain, and stabilize the motion segments from L4 to S1 thereby improving her lower back pain.
Surgery is reasonably necessary, trialling injection which will likely be of limited benefit in the presence of significant neurological compression as well as arthritis in the lumbar spine, and chronic pain management which is not recommended at her age and she was used to remain quite active and independent.”
[12] Application pages 82-83.
In a medical questionnaire dated 25 March 2024,[13] Dr Singh states that:
“…during the course of her employment due to the nature and conditions of the job, she had multiple work-related injuries. … These injuries resulted in strain to her hip, knee and lower back. She had a right sided knee arthroplasty and a hip arthroplasty, and there was further deterioration of her back because of the leg length discrepancy of around an inch. She has poor sitting and standing tolerance, and a walking distance of only about 50 meters before she has to stop.”
[13] Application pages 67-69.
In relation to examination findings, Dr Singh states, “Signs and symptoms correspond to the findings of the MRI scan where there is severe stenosis at L4-5 and L5-S1 foraminal stenosis, worse on the left side corresponding to her symptoms.” Dr Singh gives a diagnosis of “Lumbar disc disease with severe lumbar canal stenosis from L4 to S1.”
Dr Singh states, “This is related both to the years of working multiple jobs, and aggravation of the lower back following leg length discrepancy following work-related hip and knee surgeries.”
Dr Singh states that treatment for severe lumbar canal stenosis includes pain medication, physiotherapy, injections and surgery. In his view, surgery is reasonably necessary and appropriate as there is:
“very limited role for conservative management in the presence of significant neurological compression resulting in poor walking distance of not more than 2 or 3 minutes. The aim of surgery is to decompress the nerves thereby improving her leg pain, and stabilise the motion segments from L4 to S1 thereby improving her lower back pain.”
Dr Singh’s opinion is that trialling injections will likely be of limited benefit in the presence of significant neurological compression and arthritis.

Clinical notes

Living Waters Family Medical Practice

Clinical notes from Living Waters Family Medical Practice were in evidence covering the period from 7 October 2004 to 23 June 2021.[14]
[14] Application pages 419-697.
A consultation note dated 29 February 2016 records “leg pain ?sciatica”.[15]
[15] Application page 449.
An entry dated 9 September 2017[16] records a CT scan of the lumbar spine was requested. A subsequent entry dated 29 October 2018[17] records, “back pain, L loin region” and another CT scan of the lumbar spine was ordered on that occasion. The results of these scans are set out below.
[16] Application page 444.
[17] Application page 439.

Workers Doctors

Clinical notes were also in evidence from Workers Doctors covering the period 6 November 2020 to 19 December 2023.[18]
[18] Application pages 189-415.
It appears the applicant first consulted this practice in relation to the 7 October 2021 injury on 27 October 2021.[19] The applicant’s diagnosis is recorded as “R) hip severe arthritis with partial AVN; R) knee degeneration; Lumbar spine degeneration. L) shoulder degeneration, L) hip aggravation, Cervical spine degeneration, Bilateral wrists degeneration, L) ankle degeneration”.
[19] Application page 265.
“Lumbar spine degeneration” is recorded consistently in the notes from 27 October 2021 onwards.
Specific mention in the clinical notes of “lower back pain” is recorded on 15 November 2021.[20] A record from 3 December 2021 notes, “Distressed over pain and functional loss due to severity of physical injuries. Is eager to work but severity of pain prevents walking.” [21]
[20] Application page 261.
[21] Application page 260.
A consultation note dated 5 August 2022[22] records, following the right total hip replacement surgery on 1 July 2022,
“Right hip pain improving. Walking improving however restricted by bilateral knee pain. Noticing lower back pain.”
[22] Application page 237.
Following the right total knee replacement surgery on 9 September 2022, a consultation record dated 11 October 2022 states,
“Pain is preventing her from walking. Lower back. Also thoracic back pain and neck pain. Also left hip pain.”[23]
[23] Application page 231.
On 5 December 2022, a consultation note records, “Chronic pain in multiple sites – degenerative changes and osteoarthritis”[24] and on 1 May 2023, an entry states, “Left hip, from lumper [sic] … shooting pain, sometimes left leg numb.”[25]
[24] Application page 226.
[25] Application page 215.
Subsequent entries record ongoing left hip pain, but do not specifically record lumbar spine symptoms until 14 December 2023[26] when a consultation record notes the lumbar spine MRI results and states, “had MRI L spine. Discussed. Multilevel facet joint OA contacting nerve root s. Multilevel bulging disc, annular fissure.”

Radiological investigation reports

[26] Application page 192.

9 September 2017: lumbar spine CT scan

The report of a CT scan of the lumbar spine dated 9 September 2017 includes the findings:[27]
“L4/5: Moderate intervertebral disc height loss. Moderate posterior disc bulge with associated endplate osteophyte and disc calcification, worse in the left posterolateral location, results in mild canal stenosis and lateral recess narrowing, worse on the left, with potential irritation of the descending left L5 nerve root. Moderate left foraminal narrowing is seen with potential irritation of the exiting left L4 nerve root. No right foraminal narrowing. Mild right and severe left facet arthropathy.
L5/S1: No disc protrusion or canal stenosis. No foraminal narrowing. Moderate bilateral facet arthropathy.”
[27] Application pages 497-499.
The report concludes, “There is mild canal stenosis at L3/4 and L4/5 levels with potential irritation of the descending bilateral L4 and left L5 nerve roots. Foraminal narrowing may be causing irritation of the existing right L3 and left L4 nerve roots.”

29 October 2018: lumbar spine CT scan

The report of a CT scan of the lumbar spine dated 29 October 2018 states:[28]
“L4-5: Eccentric disc bulge with a more pronounced right foraminal and lateral component. There is mild to moderate canal stenosis in combination with ligamentum flavum and facet joint hypertrophy. There is likely impingement of the exiting right L4 nerve root.
L5-S1: Eccentric disc bulge with a more pronounced left subarticular and foraminal component. There is a mild canal stenosis with indentation of the left lateral recess, which could be impinging on the origin of the left S1 nerve root. There is possible contact on the exiting left L5 nerve root.”
[28] Application pages 576-577.
The report comments, “Multilevel facet joint hypertrophy on the lumbar spine, severe at L4-5 and L5-S1. Likely impingement of the exiting right L4 nerve root, and possible contact on the exiting left L5 nerve root and the origin of the left S1 nerve root.”

1 September 2021: whole body bone scan

The report of a whole body bone scan dated 1 September 2021 states, in relation to the lumbosacral spine:[29]
“Lumbosacral spine – minor degenerative change in the discovertebral junction of L5/S1 associated with low grade facet joint arthritis at L4/5 (left).”
[29] Application page 342.

12 December 2023: lumbar spine MRI

The report of an MRI scan of the lumbar spine dated 12 December 2023 includes the findings:[30]
“At L4/5, there is a posterior disc bulge and severe bilateral facet joint OA. There is moderate central canal stenosis, with bilateral subarticular zone narrowing and potential contact of the bilateral descending L5 nerve roots. There is mild central canal stenosis. There is severe right and mild left foraminal stenosis, with potential irritation of the exiting right L4 nerve root.
At L5/S1, there is a posterior annular fissure associated with a posterior disc bulge eccentric to the left, with severe bilateral facet joint OA. There is bilateral subarticular zone narrowing particularly on the left, with contact of the descending left S1 nerve root and potential contact of the descending right S1 nerve root. There is mild central canal stenosis. There is mild right and moderate left foraminal stenosis, with potential irritation of the exiting left L5 nerve root.”
[30] Application pages 86-87.
The report comments:
“The most radiologically significant change is at L5/S1, where there is potential irritation of both the descending left S1 and exiting left L5 nerve root. Clinical correlation is advised. If clinically concordant with an L5/S1 distribution, a CT guided left L5/S1 perineural/transforaminal epidural injection may be of use.”

Qualified evidence

Dr Peter Khong

The applicant relies on a report by Dr Peter Khong, neurosurgeon and spine surgeon, dated 9 May 2024.[31]
[31] Application pages 62-66.

Dr Khong records the history that:
“Ms Van Den Hout developed a leg length discrepancy as a result of her hip and knee replacements, with her left leg shorter than the right. She had physiotherapy. She started to develop lower back pain. She tried going back to work approximately 1 year after her knee surgery, but could not last more than one shift due to significant lower back pain.
Ms Van Den Hout continues to complain of band-like lower back pain, worse on the left. She also experiences pain in her lower sacrum. The pain radiates to the left buttock and lateral left thigh, sometimes down the lateral leg to the top of the foot and toes. She gets pins and needles in the left buttock and anterolateral left thigh. She has had multiple left hip injections which have not helped at all. She has gone back to see Dr Soo who doesn’t think her pain is coming from her hip. No right leg symptoms. No bladder or bowel disturbance.”
Dr Khong notes the findings of the bone scan dated 1 September 2021, MRI lumbar spine dated 12 December 2023 and EOS full spine dated 19 January 2024.
In his physical examination of the claimant, Dr Khong notes:
“Abnormal gait due to leg length discrepancy.
Neurological examination of the lower limbs in the sitting position was as follows. Normal power in all muscle groups bilaterally. Reflexes were ++ in the knees and ankles bilaterally. Sensation was globally reduced in the left lower limb.
Neurological examination of the lower limbs in the supine position was as follows. Negative straight leg raise. Normal tone bilaterally. Power was 5/5 in all muscle groups bilaterally.
Negative femoral nerve stretch test.”
Dr Khong states the diagnosis as:
“The diagnosis is lower back pain and left leg pain due to an acceleration and exacerbation of the degenerative changes in the lumbar spine as a result of altered weight bearing related to right hip and knee surgery and subsequent leg length discrepancy. The nature and conditions of her work may also previously have caused an acceleration of the degenerative changes in her lumbar spine.”
With respect to the recommended decompression and fusion surgery at L4/5 and L5/S1, Dr Khong states “this is appropriate”, noting the applicant:
“…complains of worsening lower back pain and left leg pain as a result of altered weight bearing related to her leg length discrepancy. Her MRI lumbar spine demonstrates degenerative disc disease worse at L4/5 and L5/S1 with canal and lateral recess stenosis at L4/5, and left sided lateral recess and foraminal stenosis at L5/S1. A previous bone scan demonstrated increased uptake in the L5/S1 disc and left L4/5 joint. A decompression and fusion at both these levels aims to decompress the neural elements and immobilise these presumed painful motion segments.”
Dr Khong states that the applicant has failed alternative treatments of analgesia and physiotherapy. Steroid injections have not been trialled however Dr Khong states that injections are unlikely to offer long term pain relief and the proposed surgery is likely to help with the applicant’s left leg pain and a component of her lower back pain. Dr Khong considers decompression and fusion is accepted as appropriate and likely to be effective for lower back pain and left leg pain due to degenerative disc disease and neural compression unresponsive to non-operative management.

Associate Professor Paul Miniter

The respondent relies on reports by A/Prof Paul Miniter, orthopaedic surgeon, dated 11 May 2022,[32] 19 June 2023,[33] 13 November 2023[34] and 12 March 2024.[35]
[32] Reply pages 33-39.
[33] Reply pages 40-47.
[34] Reply pages 48-53.
[35] Application pages 70-75, Reply pages 54-59.
In his report dated 11 May 2022, A/Prof Miniter states the applicant has “genuine osteoarthritic pathology at the right hip and the right knee” (although he did not consider that to be work-related), but he considered the other injuries claimed, including to the lumbar spine, were very longstanding.
In his report dated 19 June 2023, A/Prof Miniter states, in relation to the lumbar spine:
“The history of the symptomatic onset of the lumbar spine is difficult to determine. She told me that the lumbar spine issues had been present for a long time and in fact this was present prior to the surgical treatment performed in 2022. I believe that I have commented on the lumbar spine in my previous report.”
And further:
“I could see no evidence of consequential lumbar spinal injury following the aforementioned surgical procedures in 2022. The lumbar spine matter has clearly pre-dated this problem and you will note that she did see Dr Soo well before the surgical treatment.”
In his report dated 12 March 2024, A/Prof Miniter records the applicant told him that “the main issue is that she has numbness in her leg on the left-hand side at nighttime.”
In his physical examination on 12 March 2024, A/Prof Miniter records the applicant:
“…has a very slight limp, but this is probably due to a very slight increase in the leg length on the right-hand side. … Neurological examination reveals bounding reflexes in the knee and ankle on both sides. There are no neurological deficiencies that I can identify. She has a negative straight leg raising test and a negative femoral nerve stretch test. Apart from this, in the prone position she has some generalised discomfort in her back, but it is only mild and there is no significant evidence of any other local pathology.”
A/Prof Miniter considers the further surgical procedure recommended is “a somewhat remarkable recommendation. She may have degenerative change in her back, but there is no clinical evidence of nerve root compression. The history that she gave me was markedly different from the history that she apparently gave [Dr Singh].”
A/Prof Miniter states that he “can see no place for any type of lumbar spinal surgery, whether it be decompression, fusion, or a combination thereof. ...My opinion and my advice is that she is best served by no further surgical management.”
Having reviewed the updated imaging relating to the hip and lumbar spine, A/Prof Miniter states he can see “no evidence of any local pathology except early osteoarthritis of the left hip and minor osteoarthritic change of the lumbar spine.”
A/Prof Miniter notes there were no signs or symptoms of nerve root compression in his physical examination of the applicant, the bounding reflexes he recorded would be at odds with the claim of neurological compression and he considers that the applicant’s minimal symptoms do not justify lumbar spine surgery.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were recorded. The key points of those submissions are summarised below.

Applicant’s submissions

In summary, the applicant’s submissions were that:
(a)    the consequential condition to the applicant’s lumbar spine was caused by the accepted injuries. Following the applicant’s hip replacement and knee replacement surgery, she had a leg length discrepancy and had to adjust her posture and this has caused her back symptoms.
(b)    The applicant now requires lumbar surgery as a result of her hip and knee replacements.
(c)    Dr Khong states the surgery is appropriate and likely to be effective as the applicant was unresponsive to non-operative treatment.
(d)    Dr Soo states that the applicant has only complained of pain to her left hip and lower back since the right hip replacement and right knee replacement surgery. Dr Soo states it is clear the underlying pathology developed as a result of compensation following surgery and prolonged altered gait.
(e)    The two surgeries are clearly the source of the applicant’s lumbar spine pain.
(f)    Roche DP set out the relevant test in Murphy v Allity Management Services [2015] NSWWCCPD 49 at [58]: the worker only has to establish, applying the commonsense test of causation in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, that the treatment is reasonably necessary as a result of injury. That is, the worker has to establish that the injury materially contributed to the need for the surgery.
(g)    There can be multiple contributing factors and the work injury does not have to be the only or even a substantial cause of the need for surgery.
(h)    Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 is authority for the proposition that the question of whether one injury “results from” another injury is a question of fact.
(i)    Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 (Grant) is authority for the proposition that it is sufficient for symptoms to ground consequential injury. It is not necessary that the pathology be identified or expressly referred to by doctors, it is enough that the applicant suffered symptoms, which in this case is objectively demonstrated on the evidence.

Respondent’s submissions

In summary, the respondent’s submissions were that:
(a)    it is clear that pathology was present in the lumbar spine prior to the incident on 7 October 2021 and well before the surgeries carried out in 2022.
(b)    The CT scan of the lumbar spine dated 9 September 2017 confirms multilevel spondylitic changes in the lumbar spine, mild canal stenosis at L3/4 and L4/5 with potential irritation of the descending L4 and L5 nerve roots and foraminal narrowing may be causing irritation of the exiting L3 and L4 nerve roots.
(c)    An entry in the clinical notes on 29 October 2018 makes reference to complaints of back pain and referral for a scan of the lumbar spine.
(d)    The CT scan carried out on 29 October 2018 is consistent with the 2017 scan indicating multilevel joint hypertrophy, severe at L4/5 and L5/S1 with likely impingement of the exiting right L4 nerve root and possibly contact on the exiting left L5 nerve root and origin of the left S1 nerve root. This is very similar if not identical pathology to recent imaging.
(e)    The whole body scan dated 1 September 2021 identifies minor degenerative changes at L5/S1 with facet joint arthritis at L4/5.
(f)    There were no contemporaneous reports of back pain following the incident on 7 October 2021.
(g)    A/Prof Miniter noted the applicant had told him the lumbar issues had been present for a long time, prior to the 2022 surgeries, and came to the conclusion that there was no evidence of a consequential lumbar spine condition and it clearly predated the subject injury.
(h)    The lumbar spine MRI of December 2023 indicates multilevel spondylitic changes with the most significant at L5/S1 where there is potential irritation of both the descending S1 and exiting left L5 nerve root. This is virtually the same as the CT scan from October 2018.
(i)    It is clear the pathology that was present in 2018 is very similar to that referred to in December 2023.
(j)    Dr Singh and Dr Khong support the need for surgery referring to the 2023 MRI scan, however they do not appear to have had the benefit of the 2017 or 2018 CT scans in concluding the lumbar spine condition has developed post-surgery.
(k)    Dr Soo also does not have the past history as he talks about the onset of low back pain being post-hip and knee surgery. Dr Soo’s conclusion regarding causation or the need for surgery resulting from injury cannot be accepted when he does not have the past history, or the radiological investigations from 2017 and 2018.
(l)    A/Prof Miniter’s report of 12 March 2024 contains the best history as he says the applicant has some degenerative changes in her back but no clinical evidence of nerve root compression, which is in keeping with the MRI scan. A/Prof Miniter states that the applicant should avoid surgical intervention.
(m)     Even if it was accepted that the applicant did sustain a consequential low back condition, surgery is not warranted.
(n)    Dr Singh acknowledges the applicant has not tried injections or a pain management program. Those conservative options would be more appropriate and surgery should be a last resort.
(o)    Dr Khong supports surgical intervention but he does not have any history of the pre-injury low back pain and it does not appear he has seen the pre-injury CT scans.
(p)    In not having considered the earlier reports, Dr Khong, Dr Singh and Dr Soo did not have the necessary background information for them to have prepared reports in a fair climate to deal with the causation questions properly. They did not have the information which indicates the lumbar spine pathology was pre-existing before the injury in 2021 and before the knee and hip surgery in 2022.
(q)    Even if a consequential lumbar condition were accepted, employment has not materially contributed to the need for the proposed surgery as the pathology was pre-existing. In addition, there are other conservative options the applicant should undertake before embarking on surgical intervention.

Applicant’s submissions in reply

In summary, the applicant’s submissions in reply were that:
(a)    pathology is not determinative and there has been an increase in symptomology following the two surgeries in 2022.
(b)    Only following the two surgeries did the applicant suffer an increase in symptomology.
(c)    There is no evidence one way or the other whether the medical specialists were in possession of the applicant’s full clinical history.

FINDINGS AND REASONS

Consequential condition

The applicant’s case is that she sustained a condition at her lumbar spine as a consequence of the right hip replacement and right knee replacement surgery she underwent in 2022 to treat the accepted work injuries she sustained on 7 October 2021.
It is not necessary for the applicant to establish that a consequential condition is itself an “injury” as defined in s 4 of the 1987 Act. In Moon v Conmah Pty Ltd [2009] NSWWCCPD 134, Roche DP stated at [45]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
Roche DP continued at [46]-[47]:
“The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).
The Court of Appeal considered the meaning of the expression ‘results from’ in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (‘Kooragang’) where Kirby P (as his Honour then was) said at 463-4;
‘The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase “results from”, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death “results from” a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death “results from” the impugned work injury...is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions’.”
Therefore, based on the evidence, I must be satisfied that a lumbar spine condition has resulted from the applicant’s right hip and right knee injuries, using a commonsense evaluation of the causal chain.
The applicant bears the onus of proof.
I observe that a finding of a consequential condition is not necessarily dependent on diagnosis: Arquero v Shannons Anti Corrosion Engineers [2019] NSWWCCPD 3.
In addition, Deputy President Wood stated in Grant at [79]:
“Deputy President Snell reviewed the relevant authorities in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23. He made the following observations [at 169]:
‘The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms.’ (my emphasis)”
The applicant submits that pathology is not determinative and there has been an increase in the applicant’s symptoms since the surgeries in 2022.
Whilst pathology need not necessarily be identified, that does not mean it is not a relevant issue to consider. I will first examine the evidence with respect to pathology at the lumbar spine and then consider the evidence with respect to symptoms.
The respondent has submitted that the pathology that was present in 2018, as identified in radiological investigations, is very similar to that referred to in December 2023. I agree with this submission.
The conclusion stated in the CT scan report dated 9 September 2017 was “mild canal stenosis at L3/4 and L4/5 levels with potential irritation of the descending bilateral L4 and left L5 nerve roots. Foraminal narrowing may be causing irritation of the existing right L3 and left L4 nerve roots.”
The CT scan report dated 29 October 2018 found “Multilevel facet joint hypertrophy on the lumbar spine, severe at L4-5 and L5-S1. Likely impingement of the exiting right L4 nerve root, and possible contact on the exiting left L5 nerve root and the origin of the left S1 nerve root.”
A whole body bone scan performed on 1 September 2021 reported “minor degenerative change in the discovertebral junction of L5/S1 associated with low grade facet joint arthritis at L4/5 (left).”
Taken together, these scans show that prior to the date of injury on 7 October 2021 and prior to the knee and hip surgeries in 2022, the applicant had a degree of canal stenosis at L4/5, potential irritation of descending bilateral L4 and left L5 nerve roots, likely impingement of the exiting right L4 nerve root, possible contact on the left L5 nerve root and the origin of the left S1 nerve root, as well as minor degenerative change at L5/S1 and low grade facet joint arthritis at left L4/5.
The MRI scan undertaken on 12 December 2023, following the knee and hip surgeries, stated “The most radiologically significant change is at L5/S1, where there is potential irritation of both the descending left S1 and exiting left L5 nerve root.”
This possible contact of the left L5 and left S1 was observed in the CT scan of 29 October 2018.
Having regard to the available radiological investigations, I do not consider that these support the position that the applicant developed a consequential condition at her lumbar spine as a result of the right hip replacement surgery in July 2022 and right knee replacement surgery in September 2022.
Turning to the applicant’s symptoms, the applicant’s statement advises that as a result of her hip and knee surgeries, her left leg is shorter than her right, which means she walks abnormally and has to constantly adjust her posture. The applicant states that due to her altered gait, her lower back pain and pain and weakness in her left leg have both increased substantially. The applicant states that she struggles with lower back pain, especially on the left side, which spreads to her lower sacrum, left buttock, lateral left thigh, and sometimes down to her foot and toes. The applicant states that due to pain in her back and leg, she can only walk about 50 meters.

The Living Waters Family Medical Practice clinical notes record “leg pain ?sciatica” in February 2016, and an entry from October 2018 records “back pain, L loin region”. In addition, in 2017 and 2018, CT scans of the lumbar spine were requested, which suggests the applicant was reporting symptoms at that time which warranted radiological investigation.
The clinical notes from Workers Doctors record “Lumbar spine degeneration” from 27 October 2021 onwards, with a report of “lower back pain” recorded on 15 November 2021.
Following the applicant’s hip replacement surgery in July 2022, an entry on 5 August 2022 records, “Noticing lower back pain” and a subsequent note from 11 October 2022 records “Pain is preventing her from walking. Lower back. Also thoracic back pain and neck pain. Also left hip pain.”
An entry dated 5 December 2022 records “Chronic pain in multiple sites – degenerative changes and osteoarthritis” and a record from 1 May 2023 “Left hip, from lumper [sic] … shooting pain, sometimes left leg numb”.
There are subsequent entries that record left hip pain, however they do not specifically record lumbar spine symptoms until a record dated 14 December 2023 which notes the lumbar spine MRI result and states, “had MRI L spine. Discussed. Multilevel facet joint OA contacting nerve root s. Multilevel bulging disc, annular fissure.” As mentioned above, before this entry, the applicant’s lumbar spine condition is consistently recorded in the clinical notes as “Lumbar spine degeneration”.
From the Living Waters Family Medical Practice and Workers Doctors clinical notes, there are therefore reports of lower back symptoms and pain both before and after the surgeries in 2022 and the lumbar spine condition continued to be recorded as “Lumbar spine degeneration” in the Workers Doctors clinical notes until the lumbar spine MRI was undertaken in December 2023. I am not satisfied that the clinical notes provide evidence of an increase in symptomology following the 2022 surgeries to establish a consequential condition at the lumbar spine.
The applicant’s nominated treating doctor, Dr Lim, recorded the applicant’s symptoms in his initial report dated 27 October 2021 as including “Lower back pain radiating down bilateral legs” and diagnosed “Lumbar spine degeneration.” The same description of symptomology was given by Dr Lim in his report dated 12 March 2024, which states “Lower back pain radiating down bilateral legs”. With reference to the results of the MRI scan conducted in December 2023, Dr Lim provided the diagnosis of “Lumbar spine multilevel disc bulge, and severe multileve face [sic] joint OA contacting L5/S1 nerve root (MRI12/2023).”
Dr Lim further states that “As a result of her work-related lower back and R) hip injuries, [the applicant] has walked with altered gait, causing L) hip aggravation.”
Dr Lim describes the applicant’s symptoms at her lumbar spine in identical terms both before and after the knee and hip surgeries, as “Lower back pain radiating down bilateral legs”. Whilst he records on 12 March 2024 the applicant’s altered gait, he reports that this is causing aggravation to her left hip, not her lumbar spine.
Having regard to Dr Lim’s reports, I do not consider these provide evidence of a consequential condition at the lumbar spine as a result of the knee and hip replacement surgeries.
Dr Soo stated on 14 February 2024 that:
“Only since her right hip replacement and right knee replacement has Helena complained of pain to the left hip or her lower back. It is clear that her trochanteric bursitis and aggravation of her underlying degenerative Lumbar spine pathology have developed as a result of overcompensation following her right lower limb surgeries and her prolonged altered gait pattern. She also has an apparent leg length discrepancy since her surgeries which have resulted in the need for a shoe raise in the left shoe. This leg length discrepancy has added to her left hip and lower back aggravation.”
Whilst I accept on the evidence that the applicant’s leg length discrepancy has resulted in an altered gait, the balance of the medical evidence does not support Dr Soo’s assertion that the applicant had only complained of pain to her lower back since the right hip replacement and right knee replacement surgeries, as there are records of complaints of lower back pain that pre-date these surgeries. I also note in Dr Soo’s report dated 16 December 2021, before the hip and knee surgeries, that Dr Soo recorded the applicant having a leg-length discrepancy at that point in time, although at that time the right leg was shorter than the left.
Dr Singh provided a diagnosis on 25 March 2024 of “Lumbar disc disease with severe lumbar canal stenosis from L4 to S1.”
Dr Singh stated, “This is related both to the years of working multiple jobs, and aggravation of the lower back following leg length discrepancy following work-related hip and knee surgeries” and he recommended surgery to decompress the nerves to improve the applicant’s leg pain, stabilize the motion segments from L4 to S1, thereby improving her lower back pain.
As set out above, however, the radiological evidence supports the view that there is little difference between imaging taken in 2018 and 2023 with respect to the L4 to S1 level. I therefore do not agree with Dr Singh’s causation finding, that the applicant’s lumbar disc disease is related to the work-related hip and knee surgeries, as the evidence is that the applicant’s lumbar disc pathology was pre-existing.
In his independent medical report, Dr Khong made a diagnosis of lower back pain and left leg pain:
“due to an acceleration and exacerbation of the degenerative changes in the lumbar spine as a result of altered weight bearing related to right hip and knee surgery and subsequent leg length discrepancy. The nature and conditions of her work may also previously have caused an acceleration of the degenerative changes in her lumbar spine.”
A finding in relation to a work-related disease injury at the lumbar spine has already been made in the respondent’s favour. Whilst Dr Khong found lower back pain was also due to altered weight bearing following surgery, he did not take a history of pre-existing back pain, which is not consistent with the clinical records and the reports of Dr Lim. I therefore give limited weight to his conclusion regarding the cause of the applicant’s lower back pain and leg pain.
A/Prof Miniter stated in his report dated 19 June 2023 that he “could see no evidence of consequential lumbar spinal injury following the aforementioned surgical procedures in 2022. The lumbar spine matter has clearly pre-dated this problem and you will note that she did see Dr Soo well before the surgical treatment.”
Whilst I have taken into account the applicant’s statement evidence regarding her lumbar symptoms, I am also required to consider the medical evidence. Having considered all the evidence as a whole, I am not satisfied that there is evidence that the applicant sustained a consequential condition at the lumbar spine, based on the symptoms reported or on the pathology identified.
The clinical notes and radiological investigations support the view that the applicant has experienced pathology at her lumber spine since 2017 and had made reports to her treating doctors about low back pain before the hip and knee surgeries that were undertaken in 2022. I am not persuaded that the radiology discloses a change in pathology, nor that the reports of symptoms in the low back indicate that a consequential condition arose as a result of the 2022 surgeries, noting there were previous reports of lower back pain and pain radiating down the legs.
Considering all the evidence, I am not satisfied on the balance of probabilities that the applicant sustained a lumbar spine condition as a consequence of the right hip replacement and right knee replacement surgeries she underwent in 2022 to treat the accepted work injuries she sustained to her right hip and right knee.

Reasonably necessary medical treatment

As I have not found a consequential condition at the lumbar spine established, it follows that I do not find the proposed surgery to the lumbar spine to be reasonably necessary as a result of an injury received by the applicant, pursuant to s 60 of the 1987 Act.

SUMMARY

The applicant did not sustain a consequential condition to her lumbar spine resulting from her accepted right hip and right knee injuries.
The medical treatment expenses claimed for the proposed lumbar spine surgery are therefore not reasonably necessary as a result of an injury received by the applicant pursuant to s 60 of the 1987 Act.
Award for the respondent.

[2024] NSWPIC 522

19 September 2024