Wilkinson v MJW Carpentry Pty Limited
[2021] NSWPIC 217
•30 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Wilkinson v MJW Carpentry Pty Limited [2021] NSWPIC 217 |
| APPLICANT: | Stephen Wilkinson |
| RESPONDENT: | MJW Carpentry Pty Limited |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 30 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for medical expenses, including the cost of proposed L4/L5 laminectomy, discectomy and fusion; longstanding history of lumbar spine symptoms; applicant being treated by neurosurgeon before the injury, but surgery had not been recommended; delay in recording injury to lumbar spine in clinical records; appropriateness of surgery as treatment for applicant’s condition not disputed; application of section 4(b)(ii) of the 1987 Act; Kooragang Cement Pty Ltd v Bates and Murphy v Allity Services considered; Held- the applicant sustained injury to his lumbar spine due to aggravation of pre-existing degenerative disease, to which employment was the main contributing factor; medical treatment, including proposed surgery, reasonably necessary as a result of injury; award for the applicant for past medical expenses and cost of surgery. |
| DETERMINATIONS MADE: | 1. That there is an award for the applicant, pursuant to section 60 of the Workers CompensationAct 1987 in respect of the cost of treatment for the lumbar spine as a result of injury on 2. That the respondent is to pay, pursuant to section 60(5) of the Workers Compensation Act1987, the costs of and associated with the surgery proposed by Dr Darwish, that is L4/L5 laminectomy, discectomy and fusion. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Stephen Wilkinson (Mr Wilkinson) was employed by the respondent, MJW Carpentry Pty Limited as a labourer.
Mr Wilkinson sustained injury to his left shoulder, arm, elbow and neck on 17 April 2019, when he fell through a manhole when a ladder onto which he was lowering himself wobbled and moved. He also claims to have sustained injury to his back. Liability has been accepted for injuries to his left shoulder, arm, elbow and neck.
On 9 October 2019, icare workers insurance (icare) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act).
Icare disputed liability pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) for payment of proposed medical treatment with respect to injury to the applicant’s lumbar spine, that is, L4/L5 laminectomy, discectomy and PLIF (posterior lumbar interbody fusion). Icare disputed that the treatment was reasonably necessary as a result of the injury. However, it advised the applicant that it would continue to investigate “the eligibility” of his claim for injury to his lower back.
On 26 February 2020, icare issued the applicant with a further notice pursuant to section 78 of the 1998 Act.
Icare disputed that the applicant had sustained injury as required by section 4 of the 1987 Act; that his claimed consequential condition resulted from his accepted injury as required by sections 4 and 9A of the 1987 Act [sic]; that his injury was received in the course of employment as required by section 4 of the 1987 Act; that he was entitled to weekly benefits or medical expenses, as he did not have an incapacity for work resulting from an injury as required by section 33 of the 1987 Act; and that medical or related treatment was reasonably necessary as a result of injury as required by sections 59 and 60 of the 1987 Act. It also disputed that the applicant’s employment was the main contributing factor to a disease injury (either the contraction of a disease or its aggravation, acceleration, exacerbation or deterioration) as required by section 4(b) of the 1987 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 19 February 2021. He claimed past medical expenses of $8,174.20; and future medical expenses of
$28, 462.50 in respect of L4/L5 laminectomy, discectomy and fusion surgery.The respondent lodged its Reply on 12 March 2021.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his lumbar spine arising out of or in the course of his employment on 17 April 2019; and
(b) whether the necessity for medical treatment of the applicant’s lumbar spine, including proposed surgery, is reasonably necessary as a result of injury on 17 April 2019.
The respondent does not dispute that the proposed surgery to the applicant’s lumbar spine is an appropriate form of treatment for his condition, but that the necessity for the surgery results from injury arising out of or in the course of his employment with the respondent.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/arbitration hearing on 24 May 2021. Mr Perry of counsel, instructed by Ms Kimberley Becker, appeared for the applicant, who was present. Mr Harris appeared for the respondent. Mr Perry Peralta and Ms Tamara Ng of EML also attended.
The applicant sought an order that the respondent pay the reasonably necessary costs of and associated with treatment to his lumbar spine from 17 April 2019; and a specific order pursuant to section 60(5) of the 1987 Act that the respondent pay the costs of and associated with the surgery proposed by Dr Darwish, namely the surgery for which the doctor has issued a quotation, that is discectomy and fusion at L4/L5.
The applicant confirmed that he claims that he has sustained injury as a result of the aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to section 4(b)(ii) of the 1987 Act, to which his employment was the main contributing factor; and the injury has made a material contribution to the need for surgery. He does not claim to have sustained a consequential condition of his lumbar spine as a result of the accepted injury to his left shoulder.
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
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attachments;
(b) Reply and attachments;
(c) Application to Admit Late Documents dated 17 May 2021, filed by the applicant and admitted by consent, and
(d) Application to Admit Late Documents dated 18 May 2021, filed by the respondent and admitted by consent.
Oral evidence
There was no application by either party to cross-examine any witness or to call oral evidence.
FINDINGS AND REASONS
Evidence of the applicant, Stephen Mark Wilkinson
The applicant’s first statement is dated 3 July 2019. Part of the statement is addressed to the issue of “worker”. As it is not disputed that the applicant was employed by the respondent, it is not necessary to consider that part of the statement.
The applicant sustained a previous injury to his lower back. He was treated for a “sciatica nerve” that ran down his right leg, by cortisone injection on 19 March 2019. This stopped the pain and he no longer required prescription medication. The injury did not prevent him performing his normal duties.
On 17 April 2019, the applicant was performing truss repairs on a site at Oran Park. He was working in the roof of a single-storey dwelling. At about 3pm he was coming from the roof down to the ground. The workers had gained access to the roof through a manhole in the garage. The garage floor was a standard concrete floor. The applicant had climbed an A-frame aluminium ladder that was just short of roof height when it was open and standing.
As the applicant lowered himself toward the ladder, his foot touched it and it moved and wobbled. The ladder “went” and he thought he would crash through the ceiling, as his weight was already overbalanced. He did not want to damage the ceiling, so he pushed with his arms backward. He bounced off the left truss, hit the right truss with his head and fell through the manhole, still holding the truss with his left arm. He landed on the bottom step of the ladder and grabbed the ladder to keep upright.
The applicant was in shock. He was not quite sure what happened. He remembered the fall. “Shane”, the other builder who was in the roof, told him his head was bleeding. He felt a gash in his head, which was bleeding. At the time, he was not feeling the pain and did not feel anything at all. He was thinking how lucky he was.
The applicant was still standing where he landed and checking himself. He went to move his left arm but could not move it in any direction. It “was just like hanging there”. He explained to Shane and “Greg”, Shane’s father, who was also on site, that he could not move his arm. They thought he had popped his shoulder out. He told them he was going home.
The applicant drove to Ingleburn without using his left arm and changing gears with his right arm. He drove straight to Ingleburn Medical Centre and saw Dr Soe Aung. She sent him upstairs for an ultrasound and he was given a script for pain medication.
On 18 April 2019, the applicant returned to the Ingleburn Medical Centre and saw
Dr Patroulias, who told him he had a tear in his upper left shoulder. He had extreme pain in his left elbow, his whole left arm and shoulder. Nothing seemed to help. He had taken all the pain killers he had been given.Over the weekend, the applicant’s left arm started to swell from the shoulder to and including his hand. His daughter took him to Campbelltown Hospital, where he had another ultrasound and was given medication. The ultrasound showed a significant tear and a different diagnosis to that of Dr Patroulias. The applicant was given a report from the hospital to take to the doctor.
Dr Patroulias recommended that the applicant have a cortisone injection in his shoulder, and this took place about two weeks after the long (Easter) weekend. The applicant then had to wait a further week for an appointment with Dr Chandra Davé. Dr Davé referred him for MRI of his shoulder.
When he next saw Dr Davé, the applicant was told he had torn the tendon off the bone and required surgery as a priority. He then contacted WorkCover and returned to see Dr Soe, who issued him with a WorkCover certificate.
The applicant was awaiting surgery on his shoulder. He wanted it fixed so he could go back to work. Since the fall, he was suffering from a sore neck and sciatica pain that ran down both legs. He believed this was from the fall. He was unable to walk or stand for periods of time and had unbearable shooting burning pains that felt like electricity volts. He had to squat in public places to try and shut down the pain while trying to perform daily tasks.
On 14 August 2020, the applicant stated that he first injured his back in or about 2002, when he was struck by another person and fell backwards, hitting his back against a wall. He required medical treatment and had pain radiating from his back into both legs and urinary issues. He recovered and returned to work without issue.
In early 2019, the applicant spoke to Dr Aung, as he had been experiencing a flare up in his back pain for the past few years, with pain down his right leg. Dr Aung referred him for CT of his lumbar spine on 29 January 2019. This showed a grade 2 L4/L5 spondylolisthesis broad based disc bulge and bilateral foraminal stenosis at L4/L5. Dr Aung referred Mr Wilkinson to Dr Balsam Darwish.
On 27 February 2019, the applicant had MRI of his lumbar spine, which showed bilateral pars defects at L4, with a grade 1 spondylolisthesis at L4/L5, causing severe foraminal narrowing and effacement of the L4 nerve roots bilaterally, as well as a right posterolateral and lateral disc protrusion at L5/S1, compressing the right L5 nerve root.
The applicant had a CT guided right L4/L5 transforaminal epidural injection on 19 March 2019, after which he had complete resolution of his back and right leg pain.
The applicant stated that he lodged a claim in early May 2019 and icare accepted liability. Over the course of the next week or so (after the injury), he noticed increased pain in his lower back, radiating to both legs, and pain and stiffness in his neck. He felt the pain had been brought on by the fall on 17 April 2019.
The applicant had attempted to return to work on two occasions, but pain made it impossible. He had seen Dr Davé for his left shoulder and arm injury. There was a temporary decrease in his pain levels after a cortisone injection to his shoulder on 29 April 2019, before the pain level resumed. He referred to investigations of his left elbow and cervical spine.
On 24 June 2019, the applicant again saw Dr Darwish and explained about his increased back pain and his new neck pain. Dr Darwish referred him for MRI of his cervical and lumbar spine.
The applicant saw Dr Darwish again on 1 July 2019. Dr Darwish advised him he needed surgery to his lower back and cortisone injections to his neck. He recommended a L4/L5 laminectomy, discectomy and fusion. The applicant advised icare and requested approval for surgery.
The applicant had CT guided injections of his cervical spine, for pain relief. He also had an
x-ray and ultrasound of his right shoulder.On 16 August 2019, the applicant underwent left rotator cuff repair, performed by Dr Davé.
Liability for medical treatment and surgery to the applicant’s lower back was disputed on 9 October 2019, on the basis that the need for surgery was due to pre-existing degeneration of his back, rather than aggravation following injury on 17 April 2019.
Dr Darwish arranged for the applicant to have CT guided right L4/L5 translaminar epidural injection on 29 October 2019. It aggravated his back and right leg pain, which was so bad that he sought treatment at Campbelltown Hospital on 6 November 2019. He was advised to keep taking his pain medication. He saw Dr Darwish on 11 November 2019 and was prescribed additional pain medication.
The applicant has pain and restriction of movement in his neck, left shoulder, elbow and arm and lower back. He has pain radiating down both legs, worse on the right. His sleep is disturbed by pain. He is unable to do daily household tasks and is dependent on his wife for assistance. He has in the past needed help to get out of the bath, dress and shower. He is unable to walk or drive for prolonged periods.
Medical evidence
Dr Soe Aung/Ingleburn Medical Centre
The records of the Ingleburn Medical Centre are in evidence. I have not referred to all of the entries in these reasons.
The applicant attended on 10 March 2002 with neck pain after “another assault recently”. He had been admitted to a mental health unit. He again attended on 27 April 2002, when it was noted that he had a lower cervical pinched nerve.
On 14 April 2003, the notes record concern about the insurance letter re w/c not helping him “as barrister stated”. The applicant had been harassed for five months in a job until he could not cope. He was “clean now, not doing any drug” and running his own business as a carpet cleaner.
On 25 August 2003, the applicant had fallen backwards onto a brick wall and hurt his “bottom” 13 days before. He had been in hospital for five days on morphine injections. He didn’t want pethidine because he was a former addict.
On 22 July 2005, the applicant presented with sudden midline lower back pain after lifting carpet the day before. There was no radiation or sciatica.
On 6 November 2006, the applicant presented with “back strain from carpet business”. There is a notation of “?/facet jnt”.
The applicant presented with neck pain on 24 December 2009, after being hit on the back of his helmet by a co-worker with a shovel; and there were several consultations about his neck in January 2020. His neck pain was better and he wanted to go back to carpet laying. He had “coped OK” but on 10 February 2010 he reported that his neck was painful the day before.
On 1 April 2016, the applicant reported the sudden onset of right sided low back pain while lifting aluminium on his ute that day. There was nil radiation. The history of a back injury 10 years before when his mate pushed him against a wall was noted.
The applicant continued to attend the practice in April 2016 with complaints of back pain. He was wearing a back brace and “awaiting neurosurgeon” (on 9 April 2016). By 12 April 2016, he was looking pain free and moving more freely, and had stopped taking Endone.
On 25 October 2016, the applicant presented with back pain after jarring his back. He had reduced range of motion and was prescribed Endone.
On 3 January 2017, the applicant presented with recurrence of right sacral pain and radiation down the right leg. This had started some years ago and “re-started during indoor soccer”. He was to see Dr R Bazina. He had known spondylolisthesis.
On 12 August 2017, the notes record that the applicant had pulled his back in the lumbar area and had pain down the right leg into the calf and inside of foot. He requested Endone.
On 26 September 2017, the applicant presented, having injured his back that day lifting and dropping a carpet. He had pain and tenderness from L3 to L5.
On 27 October 2017, the applicant presented with right sciatic leg pain. He was prescribed Endone.
The applicant again presented with intermittent lumbar pain on 23 November 2017, “and it shoots down the r leg”. He requested Endone for right sciatica on 5 December 2017. His back was improving by 12 December 2017.
On 1 January 2018, the applicant’s pain had been “much worse in lower back”. He was prescribed Tramadol and Endone. By 21 January 2018, his back pain and right groin pain had improved. He was prescribed Tramal and Endone on 3 February 2018, regular prescriptions for chronic back pain.
On 12 March 2018, it was noted that the pain had gone from the applicant’s right leg. “State the back spasms” and “hopefully last Endone”.
On 21 March 2018, it was noted that the applicant had spondylolisthesis of L5 on S1 and had seen Dr Bazina for right sciatica. He had had MRI but they did not have the result. He had had to stop laying carpet and did maintenance work.
The applicant presented on 27 March 2018. He had misjudged a ladder and fell 1.5 metres on his legs and then his bottom. He was OK until later after work. He was in pain and tender at L2.
On 9 April 2018, the applicant presented with chronic back pain. He had L5/S1 spondylolisthesis. He had fallen off a ladder and was taking Endone and Tramadol. He was “repeatedly warned to take only the recommended dose”.
The applicant presented with left leg sciatica on 22 May 2018. He had put his foot on the table and felt pain down into the toes.
On 29 May 2018, the applicant presented with a sore back. He had done the “carpet side” of his work the day before. He did not normally lay carpet because it caused a problem. He pointed to the lower lumbar spine and felt his back had locked up. He was walking with his spine leaning forwards, and slowly.
The applicant presented with back pain “improving minimally” on 7 June 2018 and on 12 June 2018, when he had ongoing back pain and had spent the last four days in bed. He had a stiff back.
On 3 July 2018, it was noted that the applicant clinically had sciatica and radiculopathy. On 26 July 2018, it was noted that he had gone to the chiropractor and had acupuncture, but the needles made the pain worse. He was warned about opiate tolerance but said none was working and insisted on a one-off Endone prescription.
On 2 August 2018, the applicant was to see the chiropractor that day. It was suggested that he step down the opiates as soon as the pain was manageable. He continued to be prescribed medication throughout August 2018 and on 23 August 2018 it was noted that acupuncture had helped. He had provoked his back after laying carpet for a few weeks, but he had improved and Lyrica had helped.
On 6 September 2018, the applicant presented with pain down his right leg in the back of his calf. His back was feeling OK. He hurt his back about 16 years before (he thought in 2002) but did not develop sciatic pain until 2016. He had acupuncture in September 2018.
The applicant had back pain on 5 October 2018, after concreting in his back yard. He was advised to be compliant with his medication dose. He continued to attend for medication throughout October 2018.
The next relevant entry is dated 11 November 2018 when the applicant presented with right sciatica “also lumbar spondylolisthesis”, which had been worse in the last couple of days. Simple painkillers were not helping. His gait was normal and there was no neurology. He attended the practice with chronic back pain on 17 November 2018 and 24 November 2018.
On 2 December 2018, the applicant was having “tingling pain” into his right leg, which was chronic. It was recorded on 9 December 2018 that he had trouble walking from pain in his right leg. The pain eased off when he squatted.
On 27 December 2018, the applicant gave a history that he had been painting the day before and could not move. He had an awkward posture and his lumbar area was arched. By 29 December 2018, the lumbar pain had gone, but he had pain down the centre of his right leg to the foot.
On 9 January 2019, the applicant presented with paraesthesia sensation to both legs and back pain, quite severe at times, especially with prolonged mobilisation. He needed to squat to ease the pain and was advised to see a neurosurgeon.
It was recorded on 1 February 2019 that the applicant was to see Dr Darwish. He was seen on 11 February 2019 with chronic back pain and bilateral leg paraesthesia at times. There was shooting pain intermittently down his right leg.
On 17 February 2019, the applicant had jolted his back the day before while painting, when he came off a ladder.
The applicant presented with lower back pain on 25 March 2019. He had had a cortisone injection, was working and reducing the Panadeine Forte and Tramadol.
On 28 March 2019, the applicant was making good progress; and on 29 March 2019 he was advised of possible withdrawal symptoms if he wanted to come off Lyrica.
On 7 April 2019, it was noted that the applicant had been on six Lyrica of 300mg, had reduced it to 1050mg per day and was reducing it to 600mg. He was again making good progress on 8 April 2019.
On 9 April 2019, the applicant wanted “to back off on the medications”. He was working. He was making good progress on 15 April 2019.
On 17 April 2019 there was a history that the applicant had fallen over at work that morning and hurt his left shoulder. He was tender around the shoulder joint. There was no clavicle and cervical spine tenderness and no limitation of neck movement. He had been trying to cut down Lyrica.
On 18 April 2019, the notes record that the applicant was descending down a manhole when he missed the ladder and there was sudden weight on his left arm and right. His left shoulder was tender.
The entries on 20 April 2019 and 23 April 2019 relate to the applicant’s left shoulder and elbow. On 26 April 2019, the notes record that he was scared he would get addicted to Endone.
On 30 April 2019, the applicant had concerns about left thigh pain. Only the anterior thigh had altered sensation with paraesthesia. There was no abnormality detected in his hip movements and he had a good range of motion in his back. He was recovering from the left shoulder injury.
On 8 May 2019, the notes record that the applicant still had left shoulder pain and limited range of movement in all directions. He had pain and paraesthesia sensation over the left lateral thigh.
The entries on 14 May 2019 and 20 May 2019 concern the applicant’s left shoulder and elbow. It was noted on 22 May 2019 that he had MRI “yesterday”.
On 24 May 2019, the results of the ultrasound of the applicant’s elbow were explained. He was to see Dr Davé, the following week. It was recorded on 25 May 2019 that he was taking six to eight Panadeine Forte per day, not taking Tramadol and taking two to four Endone per day. He was advised of the risk of addiction.
On 27 May 2019 it was noted that the applicant had noticed his neck was getting sore day by day since the accident. “No further injury”. He was tender on his cervical spine and referred for CT.
The entries on 29 May 2019 and 31 May 2019 relate to the CT scan of the cervical spine and plans for surgery at the hands of Dr Davé.
On 3 June 2019, it was recorded that the applicant needed a WorkCover capacity certificate from the date of the injury. He had fallen down a manhole after missing his step on stairs. He was complaining of back pain, leg pain and left shoulder pain.
On 5 June 2019, the applicant’s low back pain was “worsening”, and radiating to both legs since the accident on 17 April 2019. He was advised to see Dr Darwish and a referral was provided. His neck and back were sore on 12 June 2019.
On 14 June 2019, the notes record that the applicant was taking four to six Lyrica tablets a day, due to back pain. He had an appointment with Dr Darwish on 20 June 2019. He was advised that the doses were very high and of the risk.
On 3 July 2019, Dr Aung recorded that she had spoken to “Charlotte” (the applicant’s case manager) and told her “we are going to put his back condition in the next WorkCover”.
Dr Aung did not express any concerns about doing so.On 12 July 2019, there was a discussion about the applicant’s back, shoulder and neck pain. He was taking up to six to eight Endone a day and was advised to limit this to a maximum of four. He was aware of the risk of addiction. His back pain was affecting his daily activity on 22 July 2019.
On 14 August 2019, the applicant complained of ongoing pain, mainly over his back, and radiating pain to both legs. He was “getting used to his condition”.
On 16 October 2019, the notes record that the applicant had low back pain with radiating pain to both legs, affecting his sleep, daily activities and life. He was very upset about his pain and time off from work. He said his back pain was not like that before the accident. He had a history of back pain “not that bad”.
On 1 November 2019, the applicant’s back was better as he had had a cortisone injection. There was no spine tenderness.
On 6 November 2019, the applicant attended with tingling and numbness sensation through both legs. He had tried to call Dr Darwish, but the phone was not answered. The applicant was given Endone and advised to go to hospital if he did not improve. The doctor offered to call an ambulance, but the applicant declined, mainly due to the cost.
On 9 November 2019, the notes record that the applicant went to hospital on 6 November 2019 and was given an injection that eased the pain. He was to see Dr Darwish on the following Monday.
On 11 November 2019, the notes record that the applicant had seen Dr Darwish, who asked him to “wait for court and said he is likely to win”. There was no plan for the public waiting list.
The applicant presented on 20 November 2019 with a history of severe back pain two days before “same as the last time he came in”. He had taken Panadeine Forte, Endone and Valium all together, which slowly eased the pain.
The notes record on 21 November 2019 and 26 November 2019 that the applicant still had some strong pain. He had an episode of more severe low back pain after physiotherapy. He was to see Dr Darwish on 9 December 2019. There was some improvement noted on 5 December 2019.
On 13 January 2020, the applicant became very upset when Charlotte told him he had had a back issue since 2002. He said he is not denying that he had a back issue before.
On 3 February 2020, the applicant presented with stiffness in his back and pain radiating to both legs. He was advised to go to hospital but declined.
On 6 February 2020, it was noted that the applicant “did eventually get better”. He had exacerbation of back pain and pain down both legs. He found that squatting relieved some of the pain.
Dr Aung reported to UHG (Unified Healthcare Group) on 6 June 2020.
Dr Aung recorded a history that the applicant consulted her on 17 April 2019. He had fallen down at work, when he was descending down a manhole and missed the ladder. He could not move his left shoulder and felt stiff on the day of her examination. She noted “he also has pain in his neck, left elbow and lower back pain radiating to both legs and has to squat down to ease the pain”. He had reported that the pain in his back and neck had worsened since after the accident.
Dr Aung opined that the applicant’s employment was a substantial contributing factor to the injury.
Dr Renata Bazina – Neurosurgeon
Dr Bazina reported to Dr Patroulias on 27 April 2016. Dr Patroulias had referred the applicant on 12 April 2016 with the sudden onset of lumbar pain. The applicant worked as a carpet layer.
Dr Bazina recorded a history that the applicant had presented with severe back pain and right leg symptoms on 22 April 2016. His x-ray and CT scans confirmed L4/L5 spondylolisthesis grade 1, secondary to bilateral pars defects, which appeared long standing.
The applicant told Dr Bazina of a back injury in 2003, when he was treated at Liverpool Hospital (this may be the injury in 2002). Dr Bazina was to endeavour to find a copy of his radiology from that time. “Regardless”, the condition itself is seen in 9% to 10% of individuals and may not be related to trauma.
Dr Bazina noted that spondylosis/spondylolisthesis is a risk factor for chronic back pain, neural impingement and spinal fusion surgery. She recommended further investigations, diagnostic nerve block and medication and proceed in a “step wise” fashion.
Dr Balsam Darwish – Neurosurgeon and Spinal Surgeon
Dr Darwish reported to Dr Aung on 25 February 2019.
Dr Darwish recorded a “few years” history of lower back pain, radiating to the applicant’s right leg. The pain had been worse in the last few months. The symptoms had started 17 years ago, when the applicant was hit and fell backwards, hitting his back against a wall. He was taken by ambulance and had problems with both legs and urinary incontinence and retention. The applicant was taking Lyrica and occasional Panadeine Forte and Tramadol.
CT scan of the applicant’s lumbar spine on 19 January 2019 showed a grade 1 L4/L5 spondylolisthesis, secondary to bilateral L4 pars defect. He had bilateral L4/L5 foraminal stenosis with potential compression of both L4 nerve roots in the foramina.
Dr Darwish organised MRI of the applicant’s lumbosacral spine.
On 4 March 2019, Dr Darwish reported that the applicant continued to complain of lower back pain radiating to the right leg. It was not associated with any sensory or motor symptoms. He noted that MRI scan of the lumbosacral spine dated 27 February 2019 showed grade 1 L4/L5 spondylolisthesis and bilateral L4/L5 foraminal stenosis, with potential compression of both L4 nerve roots in the foramina.
Dr Darwish was to organise a right L4/L5 epidural cortisone injection. He advised the applicant to start an exercise program with the aim of building up his core muscles. He also prescribed Lyrica and Mobic as needed during periods of aggravation. He was to review the applicant in six months (that is, in about September 2019).
On 24 June 2019, Dr Darwish reported that the applicant had a right L4/L5 epidural cortisone injection, with complete resolution of his leg and back pain. He was doing well until 17 April 2019 when he had a fall off a ladder. He injured his left elbow and left shoulder. Since the injury he had been complaining of lower back pain radiating to both lower limbs, neck pain and stiffness and pain in the left shoulder and elbow.
Dr Darwish noted that the applicant walked in with a limp. He had normal muscular power and sensation in both lower limbs. He had decreased left shoulder abduction. Dr Darwish was to organise MRI of the cervical and lumbosacral spines.
On 1 July 2019, Dr Darwish reported that MRI scan of the applicant’s lumbar spine on 26 June 2019 showed grade 1 L4/L5 spondylolisthesis and bilateral L4/L5 foraminal stenosis, with compression of both L4 nerve root in the foramina and L5 nerve root in the lateral recess.
Dr Darwish reported having discussed with the applicant his treatment options, including surgery. He recommended L4/L5 laminectomy, discectomy and fusion. The applicant was happy to go ahead with the operation.
On 14 October 2019, Dr Darwish reported to icare at its request. He had been asked to comment on the report of Dr Powell, who was qualified by icare.
Dr Darwish confirmed that the applicant’s radiologically demonstrated L4/L5 spondylolisthesis, secondary to bilateral L4 pars defect, is a pre-existing condition. He opined that the injury was a major aggravating factor to a pre-existing condition, as before the accident the applicant had minimal symptoms. The aggravation had not ceased as the applicant remained symptomatic. Dr Darwish believed the accident was the main cause of
Mr Wilkinson’s symptoms.Dr Darwish reported to Dr Aung on 22 October 2019. He noted the applicant continued to complain of lower back pain radiating to both lower limbs, more on the right. The applicant had been seen by Dr Powell and his surgery was declined. Dr Darwish had filled [sic] a response and encouraged the applicant to dispute the decision. He was going to organise a right L4/L5 epidural cortisone injection.
On 11 November 2019, Dr Darwish reported that the injection aggravated the applicant’s back and leg pain. He had presented to the emergency department with severe back and leg pain.
Dr Darwish reported on 9 December 2019 and 21 January 2020 that the applicant continued to complain of lower back pain radiating to both lower limbs. He was to organise right L4/L5 epidural cortisone injection and prescribed Endone and Valium.
On 4 March 2020, Dr Darwish reported to UHG. He confirmed the history recorded in his previous reports and referred to his examinations on 25 February 2019 and 24 June 2019.
Dr Darwish then referred to his reviews of the applicant on 1 July 2019, when he recommended surgery, and subsequent reviews.
Dr Darwish confirmed that the applicant had back pain and the pain down both legs started before the accident. The accident on 25 February 2019 [sic] was an aggravating factor to a pre-existing condition. The proposed surgery had an 80% chance of resolving the applicant’s leg symptoms and a 60% chance of significantly improving his back pain. The injury was a major aggravating factor to a pre-existing condition.
Dr Darwish opined that the proposed surgery was reasonably necessary and an acceptable form of treatment by all practising neurosurgeons.
Dr Darwish organised for the applicant to undergo right L4/L5 epidural cortisone injections, which he reported on 15 June 2020 provided temporary relief.
On 28 August 2020, Dr Darwish reported that the applicant continued to complain of lower back pain radiating to both lower limbs. He organised another injection, which he reported on 29 October 2020 helped significantly with the applicant’s back pain.
Dr Darwish reported on 10 December 2020 that the applicant continued to complain of lower back pain radiating to both lower limbs. Dr Darwish had not heard from the insurer about the proposed surgery. He had advised the applicant to continue with the same medications and contact his lawyer and case manager.
Dr Darwish continued to report to Dr Aung, and the applicant’s complaints remained the same. His last report is dated 25 February 2021. The applicant was awaiting left shoulder surgery by Dr Davé.
Campbelltown Hospital
The applicant attended Campbelltown Hospital on 22 April 2019. He had presented with shoulder and elbow pain “after attempting to climb into manhole in house”. He rated his pain as 10/10, relieved by pain medication.
The applicant’s past medical history was recorded as sciatica, and his medications included Tramadol and Lyrica for sciatic nerve pain.
The applicant again attended the hospital on 6 November 2019, with a history of acute on chronic back pain. He had had progressive pain over the last 24 hours.
The summary included reference to a fall in April 2019 with back injury. The applicant was known to Dr Darwish and awaiting L4/L5 decompression surgery. He was in significant pain.
Dr Chandra Davé – Orthopaedic Specialist (Knee Surgery, Shoulder Surgery, Trauma, Joint Replacement)
Dr Davé treated the applicant’s left shoulder injury. There is no dispute as to that injury, but his evidence is relevant to the issue of the delay in the applicant reporting symptoms in his lumbar spine.
On 30 May 2019, Dr Davé reported to Dr Aung that Mr Wilkinson had a “massive acute cuff tear left shoulder”. He needed an arthroscopy left shoulder repair of the cuff. He also had left elbow chondral diagnosis.
Dr Davé reported on 3 June 2019 that the applicant’s MRI scan confirmed an acute tear of the rotator cuff, which needed to be repaired arthroscopically. The applicant’s elbow was particularly “grindy” and imaging suggested some osteoarthritis. He had not had prior symptoms in his elbow and there may have been a loose body there.
Dr Davé performed left rotator cuff repair on 16 August 2019 at Fairfield Hospital.
On 2 September 2019, Dr Davé reported that the applicant’s wounds had healed and there were no complications. He was to wear his sling for the next four weeks and be reviewed “at the six week mark”.
Dr Warwick Stening – Neurosurgeon
Dr Stening was qualified by the applicant and reported on 3 April 2020.
Dr Stening recorded a history that on 17 April 2019 the applicant commenced his descent through the manhole and when he reached for the ladder with his foot, it moved, causing him to lose his balance. He took his right hand off the support and when he tried to grab the truss again, he missed. He fell through the manhole, smashing his left elbow and hitting his head. He held on with his left hand and allowed himself to drop to the floor, landing on the base of the ladder.
The applicant was able to drive home and attended the local medical centre. He was sore all over, but two weeks later he noticed he had quite severe back pain and pain down both legs. At the time, he was squatting in his back yard and found he could not get up because of severe pain.
The applicant saw his local doctor and was referred to Dr Darwish. He had previously seen Dr Darwish for right sided sciatica radiating into his calf, which had been present before the accident. This had been treated with cortisone injections, which had helped. Dr Stening noted that later in the consultation the applicant told him he had had no prior back problems.
Dr Stening recorded that the applicant’s back locked up when he tried to do household duties and he also developed right sided sciatica. These episodes lasted up to four days. His pain was relieved by squatting. Dr Darwish had suggested a spinal fusion.
The applicant showed Dr Stening a cervical and lumbar MRI, performed on 26 June 2019. He was also provided with other investigations and Dr Darwish’s reports and Dr Powell’s report.
Dr Stening diagnosed bilateral pars defects of the L4 vertebra, resulting in a grade 1 spondylolisthesis of L4 on L5. There were minor degenerative changes in the form of disc desiccation in the other lumbar discs.
Dr Stening opined that the applicant’s pre-existing long-standing L4/L5 spondylolisthesis with bilateral L4 pars defects had been present for a very long time, perhaps since childhood. It had apparently been largely asymptomatic, except for some minor episodes such as the one several weeks before the accident. If the condition had been symptomatic it is most unlikely that the applicant would have been able to be employed as a roof repairer.
Dr Stening further opined that the accident aggravated the applicant’s pre-existing structural abnormality, causing the onset of symptoms. The symptoms were persisting. He noted that Dr Powell had difficulty with the onset of symptoms two weeks after the incident. In
Dr Stening’s view, this was consistent with the aggravation, particularly as the applicant had injuries to other parts of his body and may not have paid much attention to his back pain at the time.
When he applied the test of the balance of probabilities, Dr Stening opined that it was more likely than not that the accident on 17 April 2019 aggravated the applicant’s pre-existing L4/L5 spondylolisthesis, causing it to become symptomatic. The applicant’s injuries could be classified as a disease. Again, on the balance of probabilities, the injury that occurred as the result of employment was the main contributing factor to the applicant’s current condition.
Dr Stening was of the opinion that the requirement for surgery would not have arisen had the workplace injury not occurred. The suggested surgery was appropriate, both reasonable and necessary, and the result of the workplace injury. There is a 60% to 70% chance that it will significantly improve the applicant’s back pain and sciatica. It is quite possible he could return to some work, although there would be restrictions.
Dr Richard Powell – Orthopaedic Surgeon
Dr Powell was qualified by the respondent and reported on 19 September 2019.
Dr Powell recorded a history that on 17 April 2019 the applicant was climbing out of a roof space, descending through a manhole when his feet slipped off a ladder below. He hung on briefly with his left hand, before losing his grip and falling 2.5 metres to the ground. He struck his head on the edge of the manhole as he fell.
The applicant was able to drive himself to a local medical centre, complaining of left shoulder and neck pain. He subsequently presented to Campbelltown Hospital, where he was assessed before being discharged. Dr Powell noted that there was no documentation available.
Dr Powell noted that the applicant had been referred to Dr Davé and had undergone surgery the previous week. His arm remained in a sling.
In relation to the applicant’s lumbar spine, Dr Powell recorded a history that lower back symptoms developed one to two weeks after the incident. The applicant was complaining of lower back and radiating lower limb pain. He was reviewed by Dr Aung and referred to
Dr Darwish.Dr Powell noted that Dr Darwish had reviewed the applicant in March 2019. The applicant was complaining of lower back and radiating lower limb pain and was referred for L4/L5 epidural steroid injection. Dr Darwish noted this resulted in complete resolution of symptoms. “Unfortunately”, Mr Wilkinson’s symptoms had returned in the weeks after the workplace incident. Dr Darwish also noted the history of neck pain. The applicant was referred for MRI scans of the cervical and lumbar spines. Dr Darwish had recommended decompression and fusion of his lumbar spine.
The applicant’s cervical symptoms had resolved. He had constant sharp pain in the midline region of his lower back, which spread bilaterally to the paraspinal regions and down the posterior aspects of both legs to the feet. There was marked stiffness and restriction in range of motion. He had muscle spasms in the lumbar region and pins and needles in both feet. There had been no alteration in his bowel or bladder habits. His current treatment was medications and he was not performing any exercises.
Dr Powell recorded that the applicant had a history of chronic lower back pain and right sided sciatica. He had had a medical review of his lumbar spine and successful epidural steroid injection in the weeks before the workplace accident.
Dr Powell noted that the applicant was most compliant and cooperative throughout the taking of the history and his examination. There was no suggestion of overreaction or exaggeration. He was observed to be in moderate discomfort.
The applicant had an antalgic gait, and a stooped posture with a list. He was unable to stand fully erect. There was significant muscle spasm in the lower lumbar region bilaterally, and diffuse tenderness on palpation of the lumbar spine, that could not be localised more specifically. The applicant’s range of motion in forward flexion, lateral flexion and rotation was restricted.
Dr Powell had available to him the MRI scans of the applicant’s cervical and lumbar spine performed on 26 June 2019.
Dr Powell diagnosed, relevantly, a recurrence of the applicant’s previous lower back condition. MRI scans in June 2019 identified degenerative pathology at L4/L5, with a grade 1 spondylolisthesis and associated recess and foraminal narrowing. The examination was characterised by marked irritability in the lumbar spine, with generalised stiffness, diffuse tenderness and muscle spasm, though no definitive features of a lumbar radiculopathy.
Dr Powell opined that the mechanism of injury was sufficient to have caused injury to the applicant’s lumbar spine, although if that was the case, he would have expected symptoms to have developed immediately, rather than two weeks after. It was “interesting to note” that the applicant had a history of chronic lower back and radiating right leg pain, for which he sought medical attention only a few weeks before the accident. He had been referred for epidural steroid injection that resulted in complete symptomatic improvement. After symptoms recurred, Mr Wilkinson returned to his treating specialist and had a further MRI scan that demonstrated a L4/L5 spondylolisthesis, which represented a pre-existing condition. Surgery had been proposed to address that condition.
Dr Powell concluded that although it was possible the workplace incident did result in aggravation of the pre-existing disease process involving the applicant’s lumbar spine, it was unlikely to represent the main contributing factor in the subsequent flare in symptoms several weeks later. This was more likely to reflect the significant pre-existing degenerative disease process. Dr Powell did not believe there was sufficient evidence to conclude that the applicant’s employment represented the main contributing factor in the aggravation of the pre-existing degenerative disease process.
Dr Powell accepted that the surgery proposed by Dr Darwish represents a reasonable treatment option for the management of the pathology identified on MRI, although the pathology was pre-existing, and not the result of injury sustained in the course of the applicant’s employment. It is likely that he would have required this surgery, even in the absence of the injury.
On 30 March 2021, Dr Powell provided a supplementary report.
Dr Powell was asked whether the back injury that necessitated the applicant’s spinal surgery was caused by the subject incident. He responded that there was clear evidence of significant pre-existing symptomatic pathology in the lumbar spine before the motor vehicle accident [sic]. The applicant provided a history that Dr Darwish administered an epidural steroid injection several weeks before the incident, resulting in temporary resolution of his pain.
Investigations had confirmed bilateral pars defects at L4/L5 and associated grade 1 spondylolisthesis and some broad-based disc bulging. Dr Powell opined that the contemporaneous evidence did not support the applicant sustaining a specific injury to his lumbar spine in the incident. He did not develop symptoms until several weeks after and did not seek medical attention for two months. The proposed surgery addressed the pre-existing pathology.
Dr Powell opined that on the balance of probabilities it was not possible to state that the surgery was required on the basis of any injury to the lumbar spine sustained in the incident.
Dr Powell had reviewed Dr Stening’s comments. They did not lead him to alter his opinion. He noted that the issue was whether or not the incident presents the main contributing factor in the aggravation of the pre-existing degenerative disease process, sufficient to warrant the applicant eventually undergoing surgery.
Dr Powell noted that, by his own admission, the applicant did not experience symptoms in his lower back for several weeks after the incident. In Dr Powell’s experience, if a patient has sustained a direct musculoskeletal injury sufficient to cause aggravation of a pre-existing condition, that would ultimately need further [sic] fusion surgery, then it would normally be an immediate cause of some form of symptoms, irrespective of the extent of other injuries. Not only could the applicant not recall suffering any symptoms, he indicated he was pain-free in relation to the lumbar spine.
Dr Powell concluded that, taking the above into account, and noting the extent of the pre-existing pathology, it was unlikely that this incident caused permanent aggravation of the pre-existing degenerative disease process sufficient in itself to necessitate spinal fusion surgery. The surgery itself may well be appropriate, though the need for it relates to the pre-existing pathology and not to the effects of the incident.
Medical Investigations
The applicant underwent x-ray of his lumbar spine on 1 April 2016. It was reported as showing spondylolysis with bilateral pars defects that appeared longstanding, with sclerotic margins associated with grade 1 spondylolisthesis of L4 on L5 and prominence of the lumbar lordosis. There was moderate to marked disc space narrowing with disc degeneration at L4/L5 and slight subchondral sclerosis of the end plates. There was early spondylitic change at the anterior superior end plate of L1. Vertebral bodies and pedicles were intact. Visualised SI joints and the sacrum appeared intact.
CT of the applicant’s lumbar spine on 5 April 2016 was reported as showing longstanding pars defects at L4 with grade 1 spondylolisthesis associated with prominence of the lumbar lordosis. There was a broad disc protrusion at this level. There was no significant central canal stenosis. Bilateral L4/L5 foraminal stenosis may impinge on the exiting L4 nerves. At L5/S1, a right paracentral disc protrusion may impinge on the right S1 nerve. Encroachment on the right L5/S1 exit foramen may impinge on the exiting right S1 nerve. The report noted that appropriate clinical correlation was required.
MRI of the applicant’s lumbar spine on 28 April 2016 was reported as showing a grade 1 spondylolisthesis of L4 on L5. There was indication of disc desiccation at T12/L1, L4/L5 and L5/S1. There were bilateral pars interarticularis defects at L4. There was bulging at L4/L5, with compromise of each L4 nerve root; and bulging at L5/S1, without nerve root compromise.
The applicant underwent CT scan of his lumbar spine on 29 January 2019. It was reported as showing a prominent anterolisthesis of L4 on L5, with broad-based disc bulge and bilateral foraminal encroachment at L4/L5.
MRI of the applicant’s lumbar spine on 27 February 2019 was indicated by low back pain and right sided sciatica. It was compared with the CT scan. The scan was reported as showing bilateral pars defects at L4, with a grade 1 spondylolisthesis at L4/L5, causing severe foraminal narrowing, with effacement of the L4 nerve roots bilaterally. There was a right posterolateral and lateral disc protrusion at L5/S1, causing mild displacement and effacement of the right L5 nerve root within the foramen.
On 26 June 2019, the applicant underwent MRI scan of both his cervical and lumbar spines. The clinical indication for the investigation was recorded as “Fall from ladder. Lower back pain radiating into both legs. Neck pain.”
The radiologist compared the MRI to that taken on 27 February 2019. At both L4/L5 and L5/S1, he concluded “remains as before”. His impression was of stable multilevel spondylotic changes, worst at L4/L5.
SUBMISSIONS
The parties’ submissions have been recorded. I will therefore refer to them only briefly.
Applicant
The applicant submitted that he had had a significant fall, of a significant distance, 2.5 metres to the ground. He was off balance and took the impact of his body, still upright, onto his foot and leg. This was enough to cause an aggravation of his pre-existing condition. He relies on the evidence of Drs Darwish, Stening and Powell. Dr Powell opined that the mechanism of injury was sufficient to have caused injury to the lumbar spine.
The applicant submitted that what is important in Dr Powell’s report is that he was compliant and cooperative. There was no suggestion of overreaction or exaggeration. He was observed to be in moderate discomfort. He submitted that the range of discomfort is mild; moderate; and extreme. It is also significant that, five months after the event, he had an antalgic gait, muscle spasm and diffuse tenderness. There was a difference between this presentation and his presentation before the injury.
The applicant submitted that the question is whether the absence of reported or noticed symptoms excludes the possibility that the event caused the aggravation. Dr Powell does not say so. He said it was possible, which “opens the door”. He does not exclude it.
The applicant submitted that the significant injury and damage to his shoulder cannot be overlooked. His different presentation before and after the injury would incline me to accept the position adopted by Dr Stening.
The applicant’s pre-existing condition was significant and longstanding. The respondent has provided a summary of the clinical records regarding his low back pain, which he submitted I could accept as an account of his condition. He stressed that, throughout, there was no suggestion that lumbar surgery was needed. It was also clear that his pain did come and go, which is consistent with degenerative changes. He was involved in physical work and played soccer, which is in sharp contrast to how he was after the injury.
Dr Darwish recommended cortisone injection on 25 March 2019. He did not recommend surgery at that time. The result of the injection was the complete resolution of the applicant’s back pain and leg pain. Dr Darwish reported that he was doing well until 17 April 2019. After the injury he had low back pain radiating to both lower limbs. He submitted that was important. It was not fabricated, but the legacy of the aggravation.
The applicant submitted that I would take reassurance from the general practitioners’ notes. He was making good progress, as recorded by Dr Pham on 28 March 2019; and wanted to come off Lyrica, as recorded by Dr Aung on 29 March 2019. The picture was favourable after conservative treatment. He was doing a physical job, was not requesting treatment, but rather trying to get off medication.
The applicant referred to the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). He had engaged in alternative treatment and it was having a beneficial effect. There was a complete absence of pain, if the applicant is to be accepted, which he submitted he is. After the injury, there was a dramatic difference in his presentation that can’t be ignored. He referred to Dr Powell’s description of his limp, stooped posture, inability to stand fully erect and significant muscle spasm. What other conclusion is there than that this was the legacy of a significant injury to his lumbar spine?
The applicant submitted that he had real pathology, revealed on MRI beforehand, in existence at the time he was up in the roof, working without symptoms. He had been treated for the condition when it became painful; it was not painful at the time; he had a significant injury; and within a short period he had symptoms and signs. He was a straightforward witness, and the symptoms and signs are equally important. There was an aggravation, acceleration, exacerbation or deterioration of a disease, that is, there was an injury.
The applicant referred to the decision of Roche DP in Murphy v Allity ManagementServices Pty Ltd [2015] NSWWCCPD 49 (Murphy). The injury does not have to be the only reason, or even a substantial contributing factor, to the necessity for surgery. Applying the “common sense” test referred to in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) the surgery is reasonably necessary as a result of the injury. It “materially contributed”: Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87.
The applicant submitted that Dr Darwish unequivocally says the need for the surgery results from the injury. Dr Stening says the requirement for surgery would not have arisen had the injury not occurred. He submitted that it is not even necessary to go as far as Dr Stening. If there was a possibility of surgery, but it was not recommended, it might be argued that the pre-existing condition could come to surgery, but once the injury occurred, there was no doubt that it was required, because of the aggravation.
The applicant referred to Dr Powell’s supplementary report. He had not seen the applicant again. He submitted that Dr Powell did not contradict his earlier opinion that injury was not excluded by the delay in reporting symptoms.
The applicant noted that Dr Powell had commented on Dr Stening’s report and opined that the issue is whether the incident was the main contributing factor to the aggravation of the pre-existing degenerative disease process, sufficient to warrant the applicant eventually undergoing surgery. He submitted this is not the issue. The issues are whether there was an aggravation; whether employment was the main contributing factor to the aggravation, which is was, because it was the aggravation; and whether it made a material contribution to the need for surgery, which it did. Dr Powell’s report “pushes out” the time between the injury and the applicant first noticing symptoms to a few weeks. In his first report, he noted that it was one to two weeks. He has not explained why he has pushed it out.
The applicant submitted that Dr Powell opined that it is unlikely that this incident caused permanent aggravation of the pre-existing degenerative disease process sufficient in itself to necessitate surgery. The applicant submitted that he agreed with this. There was the pre-existing condition and the injury, which made a material contribution to the necessity for surgery.
The applicant submitted that his evidence is that he noticed the symptoms after a period. It did take him two weeks to complain of back pain. This does not remove one iota of the account he has given of noticing back pain coming on. There was a delay of not more than two weeks.
The applicant finally submitted that he had sustained injury pursuant to section 4(b)(ii) of the 1987 Act; and relied on Murphy.
In reply to the respondent, the applicant submitted that Dr Powell’s reports don’t have the effect for which it contends. Dr Powell said that the mechanism of the incident could have caused the injury, but the respondent submitted that he concluded it didn’t cause the injury. That is not what he said. He does not exclude the possibility.
The applicant referred to the respondent’s submission that I would conclude that he had no back symptoms for seven weeks, the reason being that there was no report until June 2019. He submitted that I would have to find he was being untruthful when he said the symptoms commenced after one to two weeks. There is no reason to find that, when he has made concession after concession regarding his pre-existing condition, and that he didn’t have immediate symptoms.
The applicant submitted that the extent of the injury to his arm was such that one can only imagine the level of pain. He referred to Dr Davé’s and his own evidence. It was completely acceptable for Dr Stening to accept that the symptoms were such that they were the focus of attention. He submitted there is no credibility issue.
The applicant referred to the respondent’s submission that Dr Darwish had not compared the MRI scans. He submitted that I can comfortably conclude that he had them both, as they were directed to and commissioned by him.
The applicant referred to the respondent’s dispute notice dated 26 February 2020. It refers to the insurer having sent questions to Dr Darwish. The correspondence is not in evidence, but this probably presents no problem, as we know what he said. The applicant submitted that
Dr Darwish had a patient in February 2019, with no spasm or limp, he was not recommending surgery, but recommended injections, which were successful. After the fall, the applicant presented with a limp and spasm (which was recorded by Dr Powell, not by
Dr Darwish). This was a significant difference in presentation.
The applicant referred to the respondent’s submission that Drs Darwish and Stening were not provided with the clinical records. He submitted that this might well have been significant if they disputed what he said, but he gave both a history of his problems. There was a “fair climate” for their opinion. The fact that the first record is dated June 2019 is only significant if the applicant is disbelieved when he says he had symptoms one to two weeks later.
Respondent
The respondent submitted that the first contemporary record of back pain was on 3 June 2019, almost seven weeks after the injury. There had been 17 attendances between the date of the injury and that date, with a history of various complaints, but not one mention of the applicant’s back. This was fatal to a claim of injury to the back.
The respondent submitted that the applicant’s first statement made no reference to his back or symptoms immediately after the incident. He went into some detail about the symptoms but made no reference to his back.
The respondent referred to Dr Powell’s report and submitted that his very clear opinion is that the mechanism of the incident could have resulted in a back injury but did not. Dr Darwish has not commented in any of his reports on the comparison between the MRI scans. The respondent submitted that the MRI scans dated 27 February 2019 and 26 June 2019 are identical. There is no relevant change. Dr Darwish referred in his report dated 24 June 2019 to correspondence not in evidence or produced under direction. The first MRI had been performed, but there is no reference to it.
The respondent submitted that Dr Darwish did not refer to the first MRI in his report dated 1 July 2019 or his detailed report dated 4 March 2020 but had “glossed over” it.
The respondent submitted that Dr Darwish and Dr Stening had been advised by the applicant’s solicitors in their letters of instruction that the injury had resulted in injury to the applicant’s back. They were not provided with his clinical records and had limited material.
The respondent submitted that the applicant attended the medical centre 44 times between 1 April 2016 and 17 April 2019. On many occasions he reported symptoms in his back, radiating to his legs. In 17 attendances after the incident and before his complaint in June, there was not one mention of his back. There were no back symptoms for almost seven weeks after the accident, which is sufficient to establish that, whatever occurred, it did not result in injury to the back. If there was an injury, it has played no part in the necessity for surgery.
The respondent did not submit that the applicant was being untruthful in his evidence as to when his symptoms commenced. It submitted that he was confused or mistaken in the history provided to Drs Powell and Stening, and more notice should be taken of the contemporary records. The suggestion that the symptoms in his back were “masked” by the symptoms in his left shoulder is also inconsistent with the records, as the applicant complained of symptoms in, for example, his neck and elbows.
SUMMARY
The applicant claims to have sustained injury to his lumbar spine on 17 April 2019. The injury is claimed to be a “disease” injury, that is the aggravation, acceleration, exacerbation or deterioration of a disease. It is not in dispute that the applicant had a significant pre-existing condition of his lumbar spine that pre-dated the injury by many years.
Section 4 of the 1987 Act provides:
In this Act--
“injury” --(a) means personal injury arising out of or in the course of employment,
(b) includes a
“disease injury”, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”The applicant bears the onus of establishing on the balance of probabilities that he has sustained injury arising out of or in the course of his employment with the respondent. His employment with the respondent must be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. It need not be the main contributing factor to the disease itself. For convenience I will use the term “aggravation” where the phrase “aggravation, acceleration, exacerbation or deterioration” appears in section 4(b)(ii) of the 1987 Act.
The respondent submitted that the fact that the first contemporaneous record of back pain occurred almost seven weeks after the injury is fatal to the applicant’s claim. I do not agree. It is necessary to closely consider all the evidence, including that of the applicant, his treating medical practitioners and the independent medical examiners, to determine the issue of injury.
In his first statement, dated 3 July 2019, the applicant gave an account of the fall itself and its aftermath. It is clear that he sustained a serious injury to his left shoulder, which caused him significant pain and distress. He stated that, since the fall, he had had neck pain and sciatica pain running down both legs.
In his second statement, the applicant gave evidence that he noticed increased pain in his lower back, radiating to both legs, and pain and stiffness in his neck, over the course of the next week after the fall. Both Dr Stening and Dr Powell have recorded a history of the onset of lower back pain one to two weeks after the injury.
The applicant also gave evidence that he had sustained a previous injury to his lower back. He was treated by cortisone injection on 19 March 2019, which stopped the pain. He was not prevented from performing his normal duties. I accept that his normal duties involved physical activities, such as working in a roof. As Dr Stening pointed out, if he had been symptomatic, it is most unlikely that he would have been able to work as a roof repairer.
The applicant’s evidence about the condition of his back is confirmed by the records of his general practitioners, who recorded between 25 March 2019 and 15 April 2019 that he was making good progress, reducing his intake of medication and working.
Dr Darwish also reported on 24 June 2019 that the applicant had had an epidural injection, with complete resolution of his back and leg pain, and was doing well until he fell from a ladder on 17 April 2019.
The respondent submitted that Dr Darwish has referred in his report dated 24 June 2019 to correspondence that is not in evidence. Dr Darwish did refer to correspondence dated 4 March 2019. I have referred to that report above.
In his report dated 4 March 2019, Dr Darwish discussed the MRI scan dated 27 February 2019, organised an epidural injection, advised the applicant to start swimming and prescribed medication. He did not arrange to see the applicant again but suggested a review in about six months. This was only about six weeks before the injury.
Dr Darwish certainly did not recommend on 4 March 2019 that the applicant undergo surgery. There is no mention of even the possibility of surgery. On the contrary, he was treating Mr Wilkinson conservatively. Apart from Dr Bazina’s somewhat prescient statement in 2016 that the applicant’s condition was a risk factor for spinal fusion, there is no record that surgery was recommended before the injury in April 2019.
Dr Darwish reported on 25 February 2019 that the applicant’s gait was normal. When the applicant presented to Dr Darwish on 24 June 2019, he walked in with a limp. No limp was recorded on 4 March 2019. There is no suggestion that the applicant was exaggerating his condition or was anything other than cooperative, as recorded by Dr Powell.
The applicant presented to Dr Powell with an antalgic gait, stooped posture and a list. He was unable to stand fully erect. There were other objective signs recorded.
Dr Darwish discussed the MRI scan dated 27 February 2019 in his report dated 4 March 2019; and the MRI scan dated 26 June 2019 in his report dated 1 July 2019. His reports disclose a subtle difference, in that he referred to the first scan as showing potential compression of both L4 nerve roots in the foramina, and the second as showing compression of both L4 nerve root in the foramina and L5 nerve root in the lateral recess.
In any event, I do not place a great deal of weight on the fact that the MRI scans may be the same. It is unlikely that Dr Darwish, or any surgeon, would base his or her opinion as to whether surgery was indicated solely on a patient’s radiological investigations.
Mr Wilkinson’s individual circumstances, including the level of his symptoms, would also need to be considered. Dr Darwish obviously did not believe the applicant’s condition, regardless of the findings on MRI, warranted a recommendation for surgery when he treated him in March 2019. His opinion changed in June 2019. The applicant’s presentation had changed.The only significant change in the applicant’s circumstances between his examination by
Dr Darwish in March 2019 and in June 2019 and by Dr Powell in September 2019 was the fall on 17 April 2019.Dr Darwish opined that the injury was a major aggravating factor to the applicant’s pre-existing condition, as before the accident he had minimal symptoms. The accident was the main cause of the symptoms. As the treating specialist, and the neurosurgeon who treated the applicant both before and after the injury, Dr Darwish’s opinion is entitled to be given suitable weight.
Dr Stening also supported the proposition that the fall aggravated the applicant’s pre-existing condition. The onset of symptoms two weeks after the injury was consistent with the aggravation. This was particularly the case when the applicant had injuries to other parts of his body and may not have paid particular attention to his back.
The respondent submitted that the suggestion by Dr Stening that symptoms in the applicant’s back may have been “masked” by his other symptoms is inconsistent with him having complained of other symptoms. I do not agree that that is necessarily the case. The applicant had long been subject to lumbar symptoms that would come and go. The symptoms in his shoulder, elbow and neck were logically the result of the fall. He may not have at first appreciated the full extent of the effect of the fall on the condition of his back.
Dr Powell, on whose evidence the respondent relied, accepted that the mechanism of injury was sufficient to have caused injury to the applicant’s lumbar spine, although if it did, he would have expected symptoms to have developed immediately. He has not excluded the possibility of the later onset of symptoms.
It is true that the applicant’s clinical records do not make any reference to him having injured his lumbar spine in the fall until 3 June 2019. This must be weighed against his evidence of the onset of lower back pain about two weeks after the injury, in circumstances where it has not been submitted that he was dishonest, but rather mistaken; the objective evidence that his condition was improving before the injury but objectively deteriorated after it occurred; and the evidence of Drs Darwish and Stening.
It was held in Nominal Defendant v Clancy [2007] NSWCA 349, by Santow JA:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive…clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes” (at [54] – [55]).
The weight of particular material in medical records must be assessed against the purpose and nature of the records, the circumstances in which they were created and by whom. More importantly, they must be weighed against the other evidence in the case. Inconsistencies between a party’s evidence and medical histories in clinical notes should be treated with caution. Basten JA in Mason v Demasi [2009] NSWCA 227 stated that the following are relevant considerations in this circumstance:
“(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise; and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.” (at [2]).
I accept the evidence of Drs Darwish and Stening. While they may not have had access to the applicant’s clinical records, they were given a history of his pre-existing problems, and
Dr Darwish was well aware of his history, having treated him before the work injury on 17 April 2019. There is a “fair climate” for the acceptance of their opinions: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 5050 at 509-510; [1985] HCA 58; 59 ALJR 844 at 846.Applying the “common sense” test referred to in Kooragang, I am satisfied on the balance of probabilities that the applicant sustained an aggravation of a disease of his lumbar spine on 17 April 2019.
A finding of aggravation does not amount to a finding of “injury”. Snell DP held in AV v AW [2020] NSWWCCPD 9 that the requirement that “main contributing factor” be established forms part of the definition of “injury” in section 4(b)(ii) of the 1987 Act. Snell DP said [at 63]:
“It was, on the clear words of the provision, necessary that ‘main contributing factor’ be established before there could be a finding of injury”.
The applicant submitted that employment was the main contributing factor to the aggravation, because it was the aggravation. The respondent did not submit otherwise.
Dr Stening expressed the opinion that the injury was the main contributing factor to the applicant’s current condition, which is not what section 4(b)(ii) of the 1987 Act requires.
Dr Powell was of the opinion that there was insufficient evidence to conclude that the applicant’s employment represented the main contributing factor in the aggravation of his pre-existing degenerative disease, but that was because he had concluded that the applicant did not sustain an injury to his lumbar spine in the fall.In State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71, Acting President Roche, considering the test in section 4(b)(ii) of the 1987 Act said [at 72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
Having determined that the applicant did injure his lumbar spine when he fell on 17 April 2019, I am satisfied that his employment, that is, the fall, was the main contributing factor to the aggravation of his disease process. There are no other competing causes of the aggravation.
As to whether the proposed surgery is reasonably necessary medical treatment, the respondent does not dispute that the surgery is appropriate to treat the applicant’s condition. It does dispute that the surgery is reasonably necessary medical treatment as a result of injury within the meaning of section 4 of the 1987 Act.
In Murphy, it was held that the injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of the treatment is recoverable under section 60 of the 1987 Act.
Roche DP said in Murphy [at 58]:
“Ms Murphy only has to establish, applying the common sense test of causation…that the treatment is reasonably necessary ‘as a result of’ the injury…That is, she has to establish that the injury materially contributed to the need for the surgery…”
Dr Darwish opined that the injury was a major aggravating factor to a pre-existing condition. He has not specifically opined that the surgery is reasonably necessary as a result of the injury, but it may be inferred, as he did not recommend surgery until after the applicant’s fall on 17 April 2019, and had previously treated him conservatively.
Dr Stening opined that the surgery would not have been required had it not been for the workplace injury. As the applicant submitted, it is not necessary to go that far in order for the applicant to succeed.
I am satisfied on the medical evidence that the surgery is reasonably necessary as a result of the injury to the applicant’s lumbar spine on 17 April 2019. The injury materially contributed to the need for surgery.
As the respondent does not dispute that the proposed surgery is an appropriate form of treatment, it is not necessary that I consider the principles discussed in Diab. However, for completeness, I note that the applicant has had further epidural injections, without lasting benefit; was prescribed Endone and other medications; and the surgery is supported by his treating specialist, Dr Stening and Dr Powell, the medical experts. In the circumstances, the surgery is reasonably necessary medical treatment.
I therefore find that the applicant sustained injury to his lumbar spine, pursuant to section 4(b)(ii) of the 1987 Act, on 17 April 2019. His employment was the main contributing factor to the injury. The applicant is entitled to an award for payment of medical expenses with respect to injury to his lumbar spine on 17 April 2019, including an order that the respondent pay the costs of and associated with the surgery proposed by Dr Darwish.
There is an award for the applicant, pursuant to section 60 of the 1987 Act; and the respondent is ordered to pay pursuant to section 60(5) of the Act the costs of and associated with the surgery proposed by Dr Darwish, that is L4/L5 laminectomy, discectomy and fusion.
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