Wilson v Woolworths Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wilson v Woolworths Limited [2023] NSWPIC 189
APPLICANT:	Courtney Marie Wilson
RESPONDENT:	Woolworths Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	28 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Weekly benefits; applicant suffered accepted injury to lumbar spine; respondent disputes liability; intervening act which broke the causal chain; question of acceptable evidence; a party which asserts an accepted injury has resolved or its effects passed carries the onus of proof on that question; Commonwealth v Muratore and University of New South Wales v Brooks applied; Held – intervening act did not break the causal chain; even if the alleged intervening act had occurred, the respondent offered no medical evidence that the effects of the alleged event broke the causal chain; the evidence establishes the applicant suffered a recurrence of her accepted lumbar spine injury, which has in turn caused her ongoing total incapacity for employment, which incapacity is not disputed; respondent ordered to pay the applicant weekly benefits from 10 July 2022 to date and continuing.
DETERMINATIONS MADE:

The Commission determines:

The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent on 15 November 2021.
At the date of the injury in [1] above, the applicant’s pre-injury average weekly earnings were $766.75 per week.
As a result of the injury referred to in [1] above, the respondent has suffered total incapacity for employment from 10 July 2022 to date and continuing.
The respondent is to pay the applicant weekly compensation as follows:
(a) pursuant to s 36 of the Workers Compensation Act 1987 from 10 July 2022 to 24 July 2022 at the rate of $728.41 per week, and
(b) pursuant to s 37 of the Workers Compensation Act 1987 from 25 July 2022 to date and continuing at the rate of $613.40 per week.

STATEMENT OF REASONS

BACKGROUND

Courtney Marie Wilson (the applicant) was employed as a full-time “online” worker at the Woolworths Ltd (the respondent) Inverell store from 2017. Her duties involved putting together and preparing for collection by customers orders which had been placed online.
It is uncontroversial to say that on 15 November 2021, she suffered an injury in the course of her employment while lifting and lowering a large container called a tote, which contained 24 cans of soft drink and five one-litre bottles of water from a shelf above head height to the floor. As the applicant straightened after putting the bag on the ground, she felt a sudden, shooting pain in her lower back.
The applicant reported her injury, attended Inverell Hospital and was prescribed pain killing medication. She had time off work.
The applicant had a CT scan of her lower back and was prescribed 5mg of Endone, up to three times per day. On 23 November 2021, the applicant had an MRI which suggested an annular tear of her L5/S1 disc. On 15 December 2021, the applicant underwent an ultrasound-guided cortisone injection which she says improved her condition for approximately some time before the pain reverted to its pre-injection severity. The applicant was certified fit to return to work by her general practitioner (GP) on 3 February 2022.
The applicant states she continued working despite ongoing lumbar spine symptoms which persisted until 8 July 2022. On that date, the applicant attended her son’s football game and states she was in severe pain, as she had been the previous day while completing her shift at work. On the evening of 8 July 2022, the applicant attended Inverell Hospital complaining of back pain radiating down her right leg and was prescribed morphine. She was discharged at 7.00 am on 9 July 2022.
On 10 July 2022, the applicant again attended Inverell Hospital due to similar lumbar spine symptoms from two days earlier, together with inability to urinate. She was then transferred by ambulance to Tamworth Hospital; however, she tested positive to COVID-19 and was therefore returned to Inverell Hospital where she underwent a further CT scan of her lumbar spine.
On the afternoon and evening of 10 July 2022, Mr Michael Thomas, who is the father of the applicant’s partner, was working at the respondent’s premises in his role as a shop assistant. He received a group-text message apparently sent by his son (the applicant’s partner) containing a photograph of the applicant being loaded on a stretcher into an ambulance for transfer to Tamworth.
Mr Thomas showed the photograph to a manager at the respondent’s store. According to Mr Thomas, the manager asked what happened to the applicant, and Mr Thomas replied with words to the effect the applicant had been “doing cartwheels in the backyard with the kids.”
Notwithstanding the applicant having presented to hospital two days earlier with lumbar symptoms and the existence of contemporaneous treating material referring to her complaints of ongoing lumbar pain since the initial injury, the respondent relied on this single utterance by Mr Thomas to deny liability for any recurrence of the applicant’s injury.
The respondent alleges Mr Thomas’ comment was suggestive of an intervening act which had broken the chain of causation between the original injury and her current incapacity, even though he was not present when the applicant was taken to hospital on either 8 or 10 July 2022 and had not spoken with the applicant as to how she had suffered the exacerbation of her symptoms.

ISSUES FOR DETERMINATION

The only issue in dispute is whether the applicant suffered a recurrence of a lumbar spine injury which has caused her ongoing incapacity, or whether she suffered an injury playing with her children such as to constitute a “novus actus interveniens” (intervening act).
At the hearing, the applicant’s pre-injury average weekly earnings (PIAWE) were agreed to total $766.75 per week. It was also agreed that from 10 July 2022 to date, the applicant has been totally incapacitated for employment, whether that incapacity arose from a work-related injury or not.
The parties agreed that if the applicant succeeds on the liability question, she is entitled to receive weekly compensation as follows:
a.two weeks of payments from 10 July 2022 pursuant to s 36 of the Workers’ Compensation Act 1987 (the 1987 Act), namely $728.41 per week, and
b.from 25 July 2022 to date and continuing pursuant to s 37 of the 1987 Act at the rate of $613.40.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 14 March 2023. At the hearing, the applicant was represented by Mr Grant of counsel instructed by Everingham Solomons Solicitors. The respondent was represented by Mr Jones of counsel instructed by BBW Lawyers Solicitors.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attachments;
(c)    applicant’s Application to Admit Late Documents (AALD) dated 9 March 2023, and
(d)    respondent’s AALD and attachments dated 9 March 2023.

Oral evidence

It was agreed between the parties that no oral evidence would be called from the applicant, given the state of her mental health and that no inference would be drawn by the Commission arising from the absence of such evidence. Likewise, neither Ms Fenton nor Ms Kemp, the managers employed by the respondent, were required for cross-examination.
Mr Thomas gave evidence. He said he lives approximately 2.5 kilometres from the applicant and that between her injury in November 2021 and the incident in July 2022, he would on average see the applicant once a week or fortnight. He said he became aware that the applicant had a flareup of her back symptoms when he received a group text message on 10 July 2022, which included a picture of the applicant being placed into an ambulance on a stretcher.
Mr Thomas said he had last seen the applicant the weekend of 1 to 3 July 2022. He said he had noticed the applicant having difficulty walking, moving and getting up and down out of chairs since her November 2021 injury and up to July of 2022.
In cross-examination, Mr Thomas admitted he had seen the applicant at work between November 2021 and July 2022. He did not say if he had seen the applicant lifting heavy totes (plastic containers) regularly filled with shopping orders for collection by people who had placed their order online, however, although he worked in a different department, he would have assumed the applicant would have undertaken such duties.
Mr Thomas was cross-examined about his statement to the effect it was his understanding upon receiving the text message with the picture of the applicant being placed in an ambulance that it was due to her back pain. He said he drew that conclusion from the way the applicant had been strapped to the stretcher, given his prior experience of working in emergency services. He stated he was familiar with the way in which patients were strapped to stretchers depending on the nature and extent of their injuries.
When asked why he told the applicant’s manager, Ms Kemp that the applicant had hurt her back doing cartwheels in the backyard given he, at the time, did not know what had happened to her, Mr Thomas said he thought the applicant’s injury was well known to the managers at the store, and it was ridiculous of Ms Kemp to ask a question as to the cause of the applicant’s condition, so he “gave a ridiculous answer.”
Mr Thomas was steadfast in mentioning he had not been told the applicant had been doing cartwheels, and that he was unaware on 10 July 2022 how the applicant had hurt her back. He repeated his belief that the applicant’s managers were aware of her ongoing problems at the time he made the remark.
Mr Jones asked Mr Thomas whether the conversation with Ms Fenton might have occurred on 8 July 2022 as alleged in the latter’s statement, however, Mr Thomas said to his knowledge, the conversation took place on 10 July 2022.

FINDINGS AND REASONS
Whether the applicant suffered a recurrence of her accepted back injury

In my view, the evidence overwhelmingly supports a finding the applicant sustained a recurrence of her accepted back injury.
Dealing first with any uncertainty surrounding the date of the conversation between Mr Thomas and the respondent’s managers, Ms Fenton stated she received via Ms Kemp a message on “Sunday, 8 July 2021” that the applicant would not be at work on 9 July 2022 as she was at the hospital.
There can be no issue 8 July 2022 was in fact a Friday. Ms Fenton said the comment by Mr Thomas in relation to the applicant being in an ambulance was made on the same day as she was given the message by Ms Kemp that the applicant would not be at work.
With respect to Ms Fenton, that evidence cannot be correct. On balance, the evidence clearly demonstrates the conversation with Mr Thomas was on 10 July 2022, not 8 July 2022. Firstly, as noted, this is because Ms Fenton admits the conversation occurred on a Sunday, and 8 July was a Friday. Further, and more importantly, the ambulance records demonstrate the applicant was transferred to Tamworth on 10 July 2022 via ambulance, not on 8 July 2022.
Whilst it is true the applicant attended hospital at Inverell on 8 July 2022, she did not do so via ambulance. Rather, she made her own way to the hospital on that day and her partner collected her on the morning of 9 July 2022. There was only one ambulance attendance on the applicant on the weekend in question, and it took place on 10 July 2022.
In her supplementary statement, Ms Fenton sates Mr Thomas showed her the photo of the applicant being loaded into the ambulance at approximately 3.00pm. Again, that evidence cannot be correct, as the ambulance records show the call to transfer the applicant was not made until 4.53pm on 10 July 2022. The ambulance arrived at the scene at 5.57pm, was with the applicant at 6.40pm, who was then loaded on board at 6.49pm.In circumstances where a respondent is essentially alleging an applicant is telling untruths about the circumstances of an alleged injury (or in this case recurrence), these are crucial details which have somehow been overlooked by the respondent in assessing the voracity of the applicant’s version of events.
The applicant’s evidence of the events from 7-10 July 2022 is as follows:
“22. On 7 July 2022, I completed my shift at Woolworths which was from 4:30 pm to 11:00 pm. I undertook my normal duties consisting of stacking the tote bags and ensuring all stock is secure for the morning shift. As I was the manager on this shift and we were short staffed, I was unable to leave and had to ensure everything was done correctly. During this shift I was in severe pain.
23.    On 8 July 2022, in the morning I had attended my son's football game in Inverell. I had previously organised to have leave on this day as I would work Fridays. During this time, I was spectating on the sideline but was in severe pain. At around 9:30 pm that evening, I attended Inverell Hospital for pain I was experiencing in my back which was also radiating down to my right leg. I was given morphine to assist with the pain.
24.    On 9 July 2022, my partner picked me up from the hospital at 7 am after spending the night at the hospital.
25.    On 10 July 2022, I went back to Inverell Hospital for the continuing pain in my back. I was transferred to Tamworth Base Hospital. As I was being loaded into the ambulance, I undertook a covid test, which returned positive. I was then tested again when I arrived at Tamworth and again tested positive. Due to this I was then sent back to Inverell where a CT scan was performed, and I was given analgesic medication to assist with the pain.”
The triage notes from Inverell Hospital on 8 July 2022 reveal the applicant was seen at 9.30pm. At that time, the following was recorded:
“Presenting Problem: Female aged 27 years, 8 months presents with Pain – Flank. Pt presents with c/o severe lower back pain radiating down right leg – throbbing pain since 1700 this Afternoon. pt reports hx slipt disks [sic]. pt sitting down and stood up this PM and pain commenced on standing. pt guarding pain, Panadol given at 1730 with minimal effect.” (emphasis added)
A referral letter generated by Inverell Hospital at 1.10am on 9 July 2022 recorded the following:
“27 yr old female with past history of sciatica presented with acute recurrent radicular pain in RIGHT lower limb, no associated weakness.
Urinalysis was reported normal,
IMPRESSION
Clinically recurrent sciatica
PLAN
. stat dose of oral diazepam 5mg + panad01 18 + endone 5mg + amitriptyiline 25mg
. if pain improves, can go home with endone take home pack, 5x5mg pack, to take as needed, and continue regular panadol 1g qld and ibuprofen 400mg tds, and to see regular GP to consider starting amitriptyline 20mg node for 4 to 6 weeks”. (emphasis added)
The applicant’s attendance at Inverell Hospital on 10 July 2022 was at 1.24pm. There is no suggestion she attended at that time via ambulance. On that date, the clinical records record the following:
“Start Date: 10 Jul 2022 13:24:
Seen By: HANRAHAN, Ms Marin
Triage Nurse Notes: Pt presents with lower back pain radiating down R leg onset Friday afternoon. Was seen in ED and d/c yesterday with Endep and Endone last took 1130, has been taking them regularly., Difficult to urinate since last night. Really has to push. BO yesterday. o/e looks uncomfortable, obs BTF. nil resp distress, neurovascular intact
Presenting Problem and Significant Events
Potential vertebral osteomyelitis
Assessment and Management
27 yo F
Representing from Friday when she presented with 10/10 back pain (seen by another practitioner - nil notes)
She was given morphine/ketamine - somewhat improvement. > discharged on PRN oxycodone
Today representing with folio back pain and difficulty urinating
No dysuria
Unable to void when trying
No cough/myalgias, arthralgias/ coryza
No flank pain
No vomiting/diarrhoea…
No back surgery however did have a corticosteroid injection lower backend of April 2022
Had a back injury in December 2021 while carrying something at work - found to have a disc prolapse” (emphasis added)
The respondent argues there was an intervening act which broke the causal chain between the applicant’s original injury and her ongoing incapacity from 10 July 2022, namely the applicant hurt herself doing cartwheels in her backyard with her children in circumstances where her previously accepted injury had resolved. The only evidence to support that argument is the statement made by Mr Thomas at work, which I have found was made on 10 July 2022.
Where a party seeks to assert a previously accepted injury has resolved, that party bears the onus of proof: see Commonwealth v Muratore [1978] 141 CLR 296; University of New South Wales v Brooks [2014] NSWWCCPD 68.
A novus actus interveniens cuts the chain of causation. In the workers compensation context, the appropriate test for causation was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:
“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 death or 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.” (emphasis added)
The effect of a novus actus interveniens is to draw a clear line between the event under consideration (in this instance the accepted November 2021 injury) and a subsequent state of affairs, so that there is no “commonsense” causation from one to the other. In other words, it is an event that so attenuates the links in a chain of causation that, by a “commonsense” evaluation, that chain is broken. In a context of seeking compensation benefits for incapacity, etc, from an injury, a novus actus interveniens renders this injury a “mere but for”.
Of course, in determining whether the applicant injuring herself while doing cartwheels with her children was a novus actus interveniens, one must first be satisfied she even attempted a cartwheel to begin with. To say there is a paucity of evidence to support the existence of the alleged intervening act in this case is an understatement.
Dealing first with the respondent’s submission the effects of the accepted injury had passed, the only evidence which can be said to remotely support that contention is a workers’ compensation medical certificate dated 3 February 2022 which certified the applicant as fit for pre-injury duties and a physiotherapy note of 1 February 2022 which records at that time the applicant was not in pain owing to the effects of a corticosteroid injection.
However, the fact someone is certified fit for their pre-injury duties does not mean their injury has resolved or its effects have passed. Injury and incapacity are separate concepts. The respondent offers no medicolegal opinion to support its contention the applicant’s accepted injury had resolved before July 2022. Its position seems to be the fact the applicant returned to work means the injury must have resolved.

The contemporaneous medical evidence strongly supports a finding the applicant continued to suffer symptoms in her lower back from the time of her injury in November 2021 up to and including July 2022. The applicant’s evidence in relation to her condition during this relevant period is as follows:
“20. On 1 February 2022, I attended on Trish Bellinger [physiotherapist] in relation to management of my ongoing pain.
21. I continued to work during this time. I was still undertaking my normal work duties, consisting of heavy lifting, and moving, regardless that I had been cleared for light duties. This was due to staff shortages. I was still working the same number of hours after my injury. Whilst undertaking work throughout this time, I was in severe pain and was taking approximately eight Panadol tablets a day to relieve the pain. I was also mixing this with Nurofen and aspirin throughout the day. I was also using Dencorub every day as an aid to the pain. The constant lifting and moving had made the pain in my back worse until it became [so] unbearable that I sought urgent medical attention. In hindsight, I had left it too long without seeking medical attention.
There is nothing to contradict the applicant’s evidence, and indeed the contemporaneous medical records assist her. The hospital records from Inverell Hospital on 8 July 2022 record the applicant arriving at 9.30 pm and presenting with pain in her flank and with severe lower back pain radiating down her right leg, throbbing pain since 5.00 pm that afternoon. As noted, the applicant reported she “has a history of slipt disks” [sic].
The ambulance record of 10 July 2022 contains the following history:
“27 YO female patient, in care of Inverell crew. Patient to be transported to Tamworth Base Hospital for further investigation and management of ? vertebral osteomyelitis. Handover and transfer of care received from Inverell crew. Per patient, she has had an ongoing back pain since workplace injury in December 2021, and presented to Inverell ED three days ago for exacerbation of pain. Patient was discharged and re-presented this afternoon with severe lower back pain and difficulty urinating. Patient treated with sepsis pathway in ED and transferred to Tamworth, ? vertebral osteomyelitis. Patient is also COVID-19 positive. O/E patient comfortable when lying still. States pain on movement in lumbar area, radiating to right leg.” (emphasis added)
It is self-evident from that record the applicant told treating medical staff she continued to suffer back problems since the accepted injury. She did so while plainly suffering very severe symptoms of not only lumbar spine pain but radiculopathy and difficulty urinating.
The weight of the evidence in this matter supports a finding the applicant’s condition had not resolved by the weekend of 7-10 July 2022. Rather, she had returned to work and continued to press on with her duties despite continuing back symptoms, which I accept worsened on and from the applicant’s shift on 7 July 2022.
The relevance of the ambulance entry on 10 July 2022 to the question of a novus actus interveniens is that it completely contradicts the statement of Mr Thomas. There is no suggestion the applicant was aware of what, if anything, Mr Thomas had told her managers at the time she provided a history to the ambulance officers of ongoing pain from November 2021 up to and including the date she was placed in the ambulance. Indeed, there is no evidence the applicant was even aware Mr Thomas knew she had been taken to hospital or transferred to Tamworth via ambulance, or that a photograph had been taken of her, let alone forwarded to the father of her partner. Appropriately, the respondent does not suggest the applicant had any such knowledge.
There is no suggestion in any of the clinical records that the applicant re-injured her back doing cartwheels or otherwise playing with her children. Whilst corroboration is not necessary in a civil case, in this instance, the clinical records support the applicant’s contention she had been suffering ongoing symptoms since her initial injury and that her pain flared on the weekend of 7-10 July 2022.
Mr Jones submitted the Commission would not accept Mr Thomas’ evidence, and not find him a witness of truth. Mr Grant submitted to the contrary. Importantly, neither Mr Thomas nor the applicant suggest the evidence of Ms Fenton is inaccurate concerning what Mr Thomas said on 10 July 2022.
On balance, I accept Mr Thomas as a witness of truth. His evidence is consistent in its own way with the clinical records, namely he says he did not know how the applicant hurt herself and was merely being sarcastic with the respondent’s managers when he said she had been playing with her children.
I reiterate, the contemporaneous treating hospital records indicate the applicant as having suffered ongoing back pain between her initial accepted injury up to the date of her admission on 8 July 2022 and again on 10 July 2022. She had a stated history of slipped discs when she presented to hospital on 8 July 2022; a referral generated by the hospital on 9 July 2022 diagnoses “clinically recurrent sciatica”; she recounted her history of back injury from 2021 to the triage nurse at Inverell Hospital on 10 July 2022; said to the ambulance officers on the same day she had ongoing back pain since her accepted injury, and her uncontested statement evidence is she had ongoing issues between November 2021 and July 2022.
In relation to the comment made by Mr Thomas, I have no difficulty accepting it was a throwaway line made to a colleague which was plainly one which he regrets, and which was made sarcastically. Mr Thomas did not embellish his evidence, and made appropriate concessions, such as acknowledging he would have noticed carrying out her normal duties at work despite her ongoing symptoms between November 2021 and July 2022.
I accept the applicant did not re-injure herself doing cartwheels with her children. Even if I did not accept Mr Thomas’s evidence and someone had in fact told him the applicant was injured in such a manner, that evidence would have come third hand and is not evidence to which I would give significant weight.
That is particularly so when the factual matrix surrounding the weekend of 7 to 10 July 2022 so strongly supports a finding the applicant was not doing cartwheels with her children, given that she had been in hospital on the evening of 8 to 9 July 2022 then discharged home and prescribed Endone, a very powerful opioid painkiller. It would, in my opinion, be remarkable for someone to present at hospital with lower back symptoms and radicular symptoms, only to then head home on the day of their discharge from hospital and begin doing cartwheels in their own backyard.
In his statement, Mr Thomas said:
“4. On Sunday 10 July, I was undertaking my normal employment duties which involved mostly packing shelves and wrapping the fruit and vegetables. At approximately 5:05 pm l received a text message of a photo of Courtney being loaded into an ambulance. It was my understanding that this was due to her back pain and that she was being transported to Tamworth Base Hospital to be provided with better medical treatment.
5. Later this day, Georgie Kernp, Courtney's direct manager, walked past. I showed her the photo of Courtney and said, ‘Courtney's not in a good way’. Georgie then asked what happened and I replied sarcastically saying ‘out in the back yard with the kids doing cartwheels’ then immediately added ‘no I don't know, I wasn’t there.’ I replied sarcastically as Georgie was aware of Courtney's previous back injury . Georgie then left.”
Ms Fenton stated Mr Thomas had in fact showed the photo of the applicant to her and made the comment about cartwheels in the same conversation. Either way, there is no doubt Mr Thomas made the comment in question. The question is what weight should be given to it.
In her statement, Ms Fenton noted the applicant asserted her back problems were from the November 2021 injury when they first spoke after the weekend of 8-10 July 2022, such conversation taking place on 15 July 2022. Ms Fenton stated:
“On Friday 15/07/2022 Courtney rang me at the store and told me the dates on her medical certificate, we were talking and I don't know how it came up but I told her that she was unlucky hurting herself doing cartwheels with the kids and she said it's the same injury. She then asked to be paid whatever entitlements she has which I organised.
On Friday 22/07/2022 she messaged me and asked to be paid and put her entitlements into a negative. I told her that we had put the personal and annual leave codes in but she was already in a negative so I didn't think the system would pay it. She then stated that she was thinking of putting in a compensation claim. Attached to this statement are the screenshots of those messages.
At no stage before this did she mention that the injury was work related and there was no incident reported from Courtney saying that a recurrence had happened at work.”
The fact the applicant did not tell Ms Fenton she had ongoing problems until after the weekend she twice attended hospital is in no way conclusive of an absence of problems between her return to work in early 2022 and her hospitalisation in July. However, when Ms Fenton mentioned the applicant hurt herself while playing with her children, the reply “it’s the same injury” can hardly be said to constitute an acceptance or admission the applicant was agreeing with what Ms Fenton had put to her.
The respondent also sought, via Ms Fenton’s evidence, to suggest Mr Thomas’ statement and oral evidence that his comment was sarcastic was only made because it had caused tension with his son and the applicant. I reject that submission. It is perfectly understandable a person in the position of the applicant would take umbrage at the family member whose discussion of their injury led to their employer denying liability for their claim. It would be unusual if they were not angry and annoyed at that set of circumstances and at the person who made the comment. That does not mean Mr Thomas was lying.
Likewise, Ms Fenton’s comment that Mr Thomas “didn’t sound” like he was being sarcastic carries no weight. Ms Fenton cannot know what was in Mr Thomas’ mind when he made the statement. I find his explanation consistent with the remark being a sarcastic comment.
It is, in my opinion, extraordinary that a respondent would deny liability in circumstances such as this in reliance of a simple one sentence statement provided by a lay witness who was not even present when the applicant was being loaded into the ambulance, or when she presented to hospital on either 8 July 2022 or 10 July 2022, and who had received only a communication by way of text message that the applicant had even hurt herself, such text message plainly not having originated from the applicant but rather from a third party whom Ms Fenton identifies in her statement as the applicant’s partner.
On balance, I am not satisfied the applicant injured her back in July 2022 doing cartwheels. That is, I am not satisfied on balance that the event said to constitute the novus actus interveniens even took place.
Further evidence in support of the proposition the applicant had suffered a recurrence of her initial injury is found in the comparative radiological scans. An MRI from November 2021 noted a suspected annular tear at L5/S1. An MRI taken on 18 July 2022 noted a disc protrusion at the same level, while an MRI of 25 October 2022 noted a mild L5/S1 disc bulge together with annular fissure.
The respondent contends these results all demonstrate different pathology, but provides no medical opinion to support that contention. As Mr Grant noted, the only “doctor” who provides an opinion supportive of the respondent is its counsel. All of the scans show pathology at the L5/S1 disc level. The pathology is consistent in my view with small disc protrusions/annular tears from November 2021 through to 10 July 2022.
Following the accepted injury in November 2021, there was an L5/S1 annular tear on MRI examination. An MRI undertaken in July 2022 confirms small diffuse disc protrusions at the same level. By October 2022, the protrusion had worsened, according to the applicant’s Independent Medical Examiner (IME) Dr Hopcroft. In examining the radiology, Dr Hopcroft’s view was:
“Diagnosis Opinion. and Prognosis
This patient has suffered an acute, significant L5/S1 intracervical disc injury in the work related activities of 15 November 2021 and three consecutive MRI scans of her lumbar spine now shows a significant intervertebral disc protrusion at the L5/S1 level which is the cause of her incapacitating back pain, and increase in right sided sciatica.”
The last entry from the applicant’s physiotherapist Ms Bellinger is dated 1 February 2022. It notes the applicant was doing light duties the previous week but “needs to be able to lift 20kg.” At the time of that entry, the applicant said she was not in pain and the cortisone injection had helped her.
Dr Siu, treating surgeon, took the following history in a report to the applicant’s GP dated 27 July 2022, less than three weeks after her ambulance transfer on 10 July:
“Ms Wilson is a 27-Year-old who reportedly injured her lumbar spine at work late last year. She works for Woolworths and generally, there is a lot of heavy lifting and truck loading. After a period of conservative treatment with physiotherapy, her condition improved and was able to return to her normal duties. There remains [sic] however some residual pain requiring some oral analgesia. About 21/2 weeks ago, she developed a severe flare-up of pain without any immediate preceding events. She recalls working a night shift the day before, There has been constant pain in the lower back with some radiation along the posterior aspect of the right leg. She has also experienced some paraesthesia. The pain initially was very severe to the point that she could not walk. She has also noted difficulties passing urine. She presented to emergency and underwent an MRI which has excluded significant nerve root compression. Currently, there remains a high level of pain, though she is able to walk, She has not been able to return to work.” (emphasis added)
Dr Siu’s history is consistent with the applicant’s symptoms improving after November 2021 but never resolving. It contradicts the respondent’s position that the applicant’s accepted injury resolved before July 2022. The only clinical entry which supports even a suggestion the applicant’s injury had resolved is the physiotherapy note of Ms Bellinger of 1 February 2022 saying at that time the applicant wasn’t in pain because the cortisone injection had helped her. Even if that note is correct, it is no evidence at all of the injury having resolved, rather it is suggestive only of the applicant receiving some relief of symptoms from the injection. The respondent, I reiterate, offers no expert opinion to support its submission the injury had resolved before July 2022.
However, even if I was satisfied the applicant had reinjured her back doing cartwheels with her children, the respondent’s medical case in support of the proposition is almost non-existent. It offers no medical opinion to support its contention the alleged cartwheel had so altered the applicant’s pathology or symptomology that it effectively broke the causal chain.
Had I accepted the applicant suffered increased symptomology as a result of performing a cartwheel, there would nonetheless need to be an inquiry as to whether the circumstances of this case fall within the three categories of subsequent injury outlined by Malcolm J in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley).
The three categories were discussed, and the decision applied in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321. Ms Johnson suffered a psychological injury in the course of employment in 2014. Subsequently, Ms Johnson suffered a second psychological injury in the course of employment with another employer. The three categories in Oakley are:
where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first.”

72. In Johnson, the Appeal Panel failed to consider the three categories in Oakley:

“The consequence of those authorities is that, in the circumstances of this case, a necessary part of the Appeal Panel’s task was to consider, in the light of the medical evidence, into which of the three Oakley categories the respondent’s case fell. That analysis was not undertaken by the Appeal Panel.
…
What was required on the part of the Appeal Panel was a careful analysis of all of the evidence. I do not pretend that task was other than one of some complexity. The Appeal Panel’s reasons do not indicate that that task was undertaken. It was insufficient for the Appeal Panel to record and summarise, as it did, the various medical reports. The further step necessary was to grapple with the complexity of a history of a serious assault at Fairvale High School that was found (by Dr Teoh before or coincidental with the commencement of her employment with Aboriginal Hostels) to have resulted in 17% whole person impairment, followed by a series of less serious incidents during her employment with Aboriginal Hostels.” At [132], [135]

The three categories in Oakley were discussed in Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56, in particular the second category, where MacFarlan JA stated:
“That second category was identified in Oakley as one ‘where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, [with the result that] the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence’ (at 573). This approach is simply an application of s 65(1) of the 1987 Act that describes the degree of permanent impairment for which compensation is payable as that which ‘results’ from the injury in question and s 65(2) which requires injuries ‘arising out of the same incident ... to be treated as one injury ...’”

74. Had I found the applicant had performed a cartwheel as alleged, the respondent has not offered any medical opinion to support its submission the causal chain between the accepted injury and the applicant’s condition had been broken. While a determination of causation is always a matter for the Commission, in circumstances such as these, there must be more than a simple assertion that an alleged intervening act has led to the applicant’s ongoing incapacity. None is offered.

On balance, the evidence in this matter is overwhelming. It plainly supports the applicant suffering a recurrence of her accepted injury on the weekend of 7-10 July 2022 against a background of persistent lumbar symptoms since November 2021.
I have no difficulty in finding for the applicant on the balance of probabilities. Adopting a commonsense evaluation of the causal chain, I reject the respondent’s submission that there was a novus actus interveniens which broke the causal chain, and I accept the applicant’s evidence as to the onset and the cause of her worsening condition. The balance of the evidence demonstrates in my view the applicant’s injury of November 2021 had not resolved and is the cause of the July 2022 flare up and subsequent accepted inability to carry out paid employment.

Given these findings, and the agreement otherwise reached between the parties as to PIAWE and total incapacity, it follows the respondent will be ordered to pay the applicant weekly compensation from 10 July 2022 to 24 July 2022 at the rate $728.41 per week and from 25 July 2022 to date and continuing pursuant to s 37 of the 1987 Act at the rate of $613.40 per week.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out at page 1 of the Certificate of Determination.

[2023] NSWPIC 189

28 April 2023