Wood v Port Stephens Council
[2024] NSWPIC 567
•14 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Wood v Port Stephens Council [2024] NSWPIC 567 |
| APPLICANT: | Keiran John Wood |
| RESPONDENT: | Port Stephens Council |
| MEMBER: | Fiona Seaton |
| DATE OF DECISION: | 14 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical treatment expenses; accepted injury to cervical spine on 7 December 2022; proposed cervical spine discectomy and fusion surgery disputed; alleged injury to lower back disputed; Held – the proposed cervical spine surgery is reasonably necessary as a result of injury, the applicant sustained an aggravation of his lumbar spine disease as a result of injury on 7 December 2022. |
| DETERMINATIONS MADE: | The Commission determines: 1. The C5/6 discectomy and fusion surgery proposed by Dr Spittaler on 18 April 2024 is reasonably necessary as a result of the applicant’s cervical spine injury on 7 December 2022 pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant sustained an aggravation of his lumbar spine disease as a result of the accident on 7 December 2022 pursuant to s 4 of the 1987 Act. The Commission orders: 1. The respondent to pay the costs of and incidental to the C5/6 discectomy and fusion surgery proposed by Dr Spittaler on 18 April 2024 at the SIRA gazetted rates. 2. The respondent to pay reasonably necessary medical and related expenses arising from the aggravation to the applicant’s lumbar spine disease pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant Mr Keiran Wood was employed as a Council Ranger by the respondent Port Stephens Council. He was injured in a motor vehicle accident while returning from a St Johns Ambulance course with a colleague on 7 December 2022. He felt immediate pain in his cervical spine and suffered a burn on his left arm after deployment of the airbag. He subsequently developed pain in his lower back.
The respondent issued dispute notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 19 July 2023, 15 August 2023 and 2 November 2023 disputing liability for the applicant’s lower back injury.
A s 78 dispute notice issued on 13 May 2024 disputes liability for C5/6 discectomy and fusion surgery proposed by Dr Spittaler.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 25 July 2024 claiming past and future medical and related treatment expenses including the proposed cervical spine surgery, and a general order for reasonably necessary medical costs associated with the applicant’s lower back condition.
The dispute was listed for conciliation conference and arbitration hearing for determination of whether the applicant sustained a lumbar spine injury on 7 December 2022 pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), and whether the applicant is entitled to payment of reasonably necessary medical expenses pursuant to s 60 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a lumbar spine injury on 7 December 2022 pursuant to s 4 of the 1987 Act, and
(b) whether the applicant is entitled to the payment of reasonably necessary medical expenses, including the proposed C5/6 discectomy and fusion surgery, as a result of the injury on 7 December 2022 to the applicant’s lumbar spine and/or cervical spine pursuant to s 60 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing before the Commission by audio visual link on 3 October 2024. Mr Craig Tanner appeared for the applicant instructed by Mr David Jones of Carroll & O’Dea Lawyers. Mr Brendan Jones appeared for the respondent instructed by Ms Erica Walter of Moray & Agnew. Mr Payne and Ms Maksimovic were present for the insurer.
During conciliation the supplementary report of Dr Spittaler dated 24 July 2024 and the further clinical records of Bay Medical Group as at 15 August 2024 were admitted into evidence by consent and with leave granted to the respondent in accordance with r 67(4) of the Personal Injury Commission Rules 2021.
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) ARD and attached documents;
(b) respondent’s Reply and attached documents;
(c) supplementary report of Dr Spittaler dated 24 July 2024, and
(d) clinical records of Bay Medical Group as at 15 August 2024.
Oral evidence
Neither party sought to adduce oral evidence.
Applicant’s evidence
The applicant relies on his statement signed on 27 June 2024. He describes what occurred on 7 December 2022 when a vehicle collided with the vehicle in which he was a passenger.
He felt immediate pain in his neck, a burn to his left upper arm and subsequently he developed pain in his lower back. Dr Vo, the applicant’s general practitioner, first saw him the following day when he complained of headache and neck pain and pain between his shoulder blades. There was concern of a possible brain bleed.
In or around June 2023 the applicant began complaining of worsening lower back pain. This was noted by Dr Vo in the Certificate of Capacity of 27 June 2023. Dr Vo referred him for an MRI of his lumbar spine.
Dr Vo’s report to the insurer of 21 July 2023 notes a lower back injury as a result of the accident on 7 December 2023, that the applicant reported this to him in January 2023 but at that time the applicant was much more concerned with the injuries to his neck and brain.
Ms Linda Reilly, physiotherapist, first treated the applicant on 6 January 2023. From
17 January 2023 she treated the applicant’s lumbar spine as well as his thoracic spine. In her report to the insurer dated 28 July 2023 Ms Reilly noted the applicant had first complained of lower back pain in January 2023 and had since had flare ups.Ms Emma Coghlan, the applicant’s subsequent physiotherapist, noted he had previously undergone lumbar spine surgery in 2001 and he had no issues post-surgery.
Dr Volschenk, pain specialist, treated the applicant from May 2023 and noted neck pain and symptoms of lower back pain and right sided leg pain. The doctor also noted the applicant was free of low back pain and leg pain following the laminectomy in 2001.
The MRI report of 25 September 2023 demonstrated a posterior disc bulge at L4/5 without significant canal foraminal stenosis or nerve root compression, mild facet joint arthropathy at L4/5, and in addition found a solid and cystic component mass.
The applicant consulted A/Prof Ferch, neurosurgeon, from May 2023. The doctor noted neck and lumbar spine symptoms which he viewed as having been triggered by the applicant’s work related injury.
Significant lower lumbar pain was reported by the applicant during a vocational assessment carried out by Actual Rehab on 3 March 2023.
The applicant describes being examined by Dr Spittaler, neurosurgeon, on behalf of the respondent on 2 February 2024. He then engaged Dr Spittaler as his treating neurosurgeon. He continues to be treated by Dr Spittaler.
Ongoing disabilities include restricted range of movement in the applicant’s neck and back, ongoing neck pain which radiates into his shoulder blades, ongoing back pain radiating into the right leg and ankle, inability to undertake domestic chores and yard maintenance, discomfort when seated or standing for long periods, restrictions in walking distances, inability to ride motorbikes, engage in social activities or return to pre-injury duties.
Dr Peter Spittaler, consultant neurosurgeon
Dr Spittaler recommends the applicant undergo an operation on his neck and sought approval from the insurer on 18 April 2024 for C5/6 discectomy and fusion with surgery fees totalling $10,021.25.
As the applicant’s treating specialist Dr Spittaler reports to Dr Vo on 10 April 2024 that the applicant has had cervical and lumbar symptoms since the accident as well as right arm pain. On 18 April 2024 the doctor says the applicant has indicated he would like to go ahead with the proposed surgery.
Dr Spittaler provides an independent expert medical report to the respondent on
14 February 2024. The applicant told Dr Spittaler he developed lower back pain in January 2023 which started two to three weeks after he had physiotherapy for his injuries.On examination Dr Spittaler notes extension of the lumbar spine produces some lower back pain at the extremes. His lower back pain is less of a problem than his main problem of occipital headache and neck pain. Based on the MRI, the lumbar symptoms are due to an exacerbation of lumbar degenerative disease. This may be contributed to by the presumed nerve sheath tumour in the doctor’s opinion.
Dr Spittaler in this report opines the lumbar spine disease is probably not a work-related aggravation on balance. He accepts there has been a delay in reporting the symptoms and he is of the opinion there is no acute finding on the lumbar imaging. He says there is a possibility that the presumed nerve sheath tumour could be causing some lumbar and leg symptoms. The doctor’s view is that it is more likely than not that the lumbar symptoms were not caused by or significantly contributed to by the motor vehicle accident. The doctor makes the further comment that the applicant’s seat did not collapse in the accident making it unlikely there was significant movement in the lumbar spine.
In his supplementary report of 24 July 2024 Dr Spittaler explains why he changes his opinion about the proposed surgery to the cervical spine; Dr Volschenk is offering no further treatment, the right arm symptoms have increased, surgery would be considered appropriate by most spinal surgeons in the situation of radicular pain that persists for more than two or three months with evidence of nerve root compression on MRI, the effectiveness of surgery is reasonably high to relieve arm symptoms although less so in relieving neck pain, and the procedure is a very common neurosurgical procedure with low risk and which is not particularly expensive.
Dr Abraham Isaacs, independent orthopaedic surgeon
Dr Isaacs, orthopaedic surgeon, provides an independent medical expert report to the applicant’s solicitor dated 6 November 2023. The doctor notes the applicant previously injured his back in 1995 and 1998 and had surgery in 2001 from which he fully recovered. The applicant had no further treatment for back pain until he aggravated his back following the incident on 7 December 2022.
Dr Isaacs diagnoses aggravation of lumbar spondylosis / L4/5 facet degeneration for which the accident is the main contributing factor.
Dr Victor Vo, treating general practitioner
Dr Vo treats the applicant after the accident for headache, neck pain, pain between the shoulder blades, and a right frontal brain lesion.
Dr Vo provides Certificates of Capacity that initially provide the diagnosis of whiplash injury grade two and later include exacerbation of cervical spondylosis and depression/mood instability.
Dr Vo refers the applicant to Hunter Physiotherapy on 22 December 2022 for opinion and management of left sided neck pain and whiplash injury.
Dr Vo’s report to the insurer on 22 December 2022 includes the diagnosis of whiplash grade two based on symptoms and signs, and right frontal intracerebral haematoma based on CT imaging.
Dr Vo refers the applicant to A/Prof Ferch, neurosurgeon, on 11 January 2023 for opinion and management of possible right frontal cavernoma, describing headaches and vision blurriness.
On 27 June 2023 Dr Vo comments that the applicant is concerned about lower back pain since the accident. The lower back pain is intermittent, has not improved much and there are no radicular symptoms. The history of previous surgery for disc bulge is noted.
The Certificate of Capacity of 27 June 2023 includes additionally lower back pain and notes an MRI lumbar spine is to be carried out to investigate flare of lower back pain.
On 11 July 2023 Dr Vo records the applicant’s ongoing lower back pain, gradually increasing since the accident, with paralumbar tenderness.
Dr Vo’s report to the insurer dated 21 July 2023 includes that the applicant;
“has also sustained a lower back injury resulting from the accident which he disclosed to me in January but at the time he was more concerned regarding his neck and brain. His back was treated with physiotherapy initially on the 20/1/23 with some improvement but has intermittently flared over the course of this year to the point now that it concerns him.”[1]
[1] ARD page 217.
A lumbar spine MRI was carried out on 8 September 2023 due to worsening lower back pain.
On 27 September 2023 Dr Vo writes to the insurer following the applicant’s lumbar spine MRI and says further investigations and specialist opinion will be obtained regarding the right sided mass. The doctor suspects the mass may have been there for some time. He suspects L4/5 disc bulging was a result of the motor vehicle accident as prior to that he was in good health and did not suffer from any lower back pain.
A/Prof Ferch’s report to Dr Vo on 18 May 2023 comments on the right frontal cavernous haemangioma condition and cervical spondylosis. The doctor gave the applicant details for Hunter Pain Specialists.
Hunter Physiotherapy clinical records
The clinical records of Hunter Physiotherapy date from 6 January 2023. They show treatment was provided for a whiplash injury and nerve root irritation at C4-6 and headaches, and that the applicant was waiting on specialist opinion regarding a brain bleed.
On 20 January 2023 Ms Linda Reilly, physiotherapist, notes “back agg today too ?? cause”.[2]
[2] ARD page 252.
Ms Reilly prepared a report to the insurer on 28 July 2023 that states the applicant first complained of lower back pain on 20 January 2023. She then says;
“[g]iven his previous history of lower lumbar surgery it is not surprising that this is easily aggravated by thoracic stiffness and associated muscle guarding. Since then he has reported other flareups which have been addressed with mobilisation of the thoracic spine and nerve glides.”
The Allied Health Recovery Request dated 4 August 2023 includes “Agg low back pain – waiting for approval for MRI of Lx.”[3] On 1 September 2023 Ms Reilly notes “[l]ow back still playing up too.”[4]
[3] ARD page 208.
[4] ARD page 224.
Associate Professor Richard Ferch, neurosurgeon
The clinical records of A/Prof Ferch describe investigations of a right frontal cavernous haemangioma, cervical spondylosis and a cystic right anterior lumbar sacral mass and possible Schwannoma (benign tumour).
On 7 November 2023 A/Prof Ferch refers to the applicant’s lumbar spine MRI and says his symptoms are potentially consistent with the L5 or S1 nerve roots without compromise to these nerves on his spine. The doctor says the mass lesion is probably asymptomatic. On
30 November 2023 he suggests a follow up scan of the mass in a year’s time.In his report to the insurer on 24 January 2024 A/Prof Ferch diagnoses neck pain and low back pain triggered by the work-related injury.
Hunter Pain Clinic records
The clinical records of the Hunter Pain Clinic include Dr Vo’s urgent referral to Dr Volschenk on 25 May 2023 for C5/C6 radicular pain after the motor vehicle accident.
The records include Dr Volschenk’s report to Dr Vo of 23 June 2023 of a review following the applicant’s medial branch block at left side C4 to C6 and proposed further treatment.
Dr Volschenk’s operation reports of 23 June 2023 for left C4-C6 medial branch blocks and
18 August 2023 for left sided C4-C6 medial branch blocks and branch radiofrequency neurotomy are included in the records.On 29 August 2023 Dr Volschenk reports to Dr Vo that radiofrequency neurotomy significantly reduced the applicant’s neck pain but he still has daily headaches.
The doctor reports the applicant is symptomatic of lower back pain and right sided calf pain which is not typical radiculopathy. A diagnostic MRI will ascertain if there is significant disc compression.
Dr Volschenk notes the applicant previously had a laminectomy although he was free of low back pain and leg pain prior to the accident.
On 25 September 2023 Dr Volschenk reports on the applicant’s MRI that demonstrates a posterior disc bulge at L4/5 without significant canal foraminal stenosis or nerve root compression, mild facet joint arthropathy at L4/5, as well as the possible Schwannoma.
Dr Volschenk says the applicant’s lower back pain is associated with his L4/5 disc degeneration and facet joint arthrosis. This may be further investigated with diagnostic medial branch blocks at L4/5, but investigation of the suspected neurofibroma/Schwannoma takes precedence.
A diagram of the applicant’s body date stamped 25 May 2023 is marked to show pain from headaches, constant neck pain and scapula pain. A diagram date stamped 23 August 2023 is marked to show the applicant’s pain at the lower back and lower right calf.
Updated Bay Medical Group clinical records
On 25 September 2023 Dr Volschenk refers the applicant to A/Prof Ferch, noting right sided neuropathic leg pain and the MRI finding of a mass with solid and cystic components in his lumbar plexus.
On 14 December 2023 Dr Volschenk reports to Dr Vo that the transforaminal injection at L4/5 have given the applicant a very short term reduction of neuropathic pain in his calf and discusses further possible treatment.
Dr Vo’s letter to the insurer of 10 January 2024 requests approval for further therapy and says the applicant’s lower back pain continues to persist. The doctor is sure the lower back pain is a direct consequence of the accident on 7 December 2022 and the applicant was pain free before that.
On 18 January 2024 Dr Vo records the applicant will be having lower back neurofrequency ablation on 22 and 29 February 2024.
On 11 April 2024 Dr Volschenk reports to Dr Vo that there has been a significant reduction in lower back pain after the interventional procedures.
Certificates of Capacity to 27 September 2023 continue to provide diagnoses of cervical spine injury, haematoma, lower back pain and depression/mood instability.
From 13 October 2023 to 15 August 2024 separate certificates are issued with the diagnosis of “Lower back injury post MVA. Likely traumatic disc bulging L4/5. Schwannoma incidental finding”.[5]
[5] Updated Bay Medical Group records page 652.
The applicant attaches a schedule of medical and related expenses to the ARD, with supporting invoices and receipts for past medical expenses totalling $2,130, and
Dr Spittaler’s cervical spine surgery fee estimate of $10,021.25.
Respondent’s evidence
The respondent’s Reply attaches the s 78 notices of 19 July 2023, 15 August 2023,
2 November 2023 and 13 May 2024.The respondent relies on Dr Spittaler’s report of 14 February 2024 and A/Prof Ferch’s report of 24 February 2024 referred to above.
Clinical records of the Bay Medical Group for the period 13 September 2011 to 17 May 2012 are attached to the Reply. These refer to a left knee work related injury suffered by the applicant in 2011.
Applicant’s submissions
The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
Regarding the proposed C5/6 discectomy and fusion surgery the applicant refers to the supplementary report of Dr Spittaler dated 24 July 2024 that sets out the doctor’s opinion as to why that surgery is reasonably necessary.
In the absence of any evidence to the contrary the applicant seeks a determination that the surgery is reasonably necessary and an order directing the respondent to pay for the costs of and incidental to that surgery.
Regarding the dispute as to whether the applicant suffered a compensable injury affecting the lumbar spine, the applicant’s statement evidence is that from the accident on
7 December 2022 he felt immediate pain in his neck and also had a burn to his left upper arm as a consequence of the airbag being deployed, and then he says he developed pain in his lower back after the accident.Important contemporaneous evidence is recorded by Ms Reilly, physiotherapist, on
20 January 2023 where she records “back agg today too?? cause”.[6] On 31 January 2023Ms Reilly records “R L4 ant disc tender ++.”[7] On 28 July 2023 Ms Reilly records “P++ in low back…”[8][6] ARD page 252.
[7] ARD page 250.
[8] ARD page 228.
Ms Reilly in her report to the insurer dated 28 July 2023 says the applicant first complained of low back on 20 January 2023 and her contemporaneous records are to that effect.
She proceeds to say that given the applicant’s previous history of lower lumbar surgery it is not surprising that this is easily aggravated by thoracic stiffness and associated muscle guarding. Since then she notes he has reported other flareups which have been addressed with mobilisation of the thoracic spine and nerve glides.
Dr Volschenk, pain specialist, provides a diagram which would appear to be recorded on
23 August 2023 reflecting symptoms experienced in the lower back and in the right lower limb.Dr Volschenk reported on 29 August 2023 that the applicant is symptomatic of lower back pain and right sided calf pain. Prior to the accident the applicant was free of low back pain and leg pain.
The applicant’s submission is that there is obviously no dispute about these symptoms but the question is the cause.
There are no clinical records of the applicant experiencing back pain in the period immediately before the accident on 7 December 2022 although we know there were complaints of back pain as early as the next month in January 2023.
As a matter of commonsense there is a causal connection between the traumatic incident on 7 December 2022 and the symptoms being experienced as the applicant recalls on the day of the accident, but certainly as recorded by Ms Reilly the following month.
The applicant submits that a relevant causal relationship between the onset of those symptoms and the motor vehicle accident should be accepted.
The applicant notes caution the case law presses upon us in relation to reliance on clinical notes in terms of what busy general practitioners may or may not record.
Dr Vo in his letter of 21 July 2023 says the applicant has also sustained a lower back injury resulting from the accident which he disclosed to the doctor in January but at the time the applicant was more concerned regarding his neck and brain.
The applicant’s submission is that frequently persons who have suffered injuries will be concentrating on the most acutely affected body part. This cannot be regarded as excluding the fact that other body parts which are not affected by the same levels of pain were not injured.
The applicant experienced the onset of lower back pain in January and there is no other explanation for those symptoms.
There is no medical opinion before the Commission which gives the basis to assume that the onset of back pain in January, and which has persisted, is not related to the motor vehicle accident.
The applicant submits that this is a clear case of injury to the lumbar spine in the course of the event on 7 December 2022 which is apparent on the evidence.
Respondent’s submissions
The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
Regarding proposed cervical spine surgery, the respondent says nothing further about
Dr Spittaler’s most recent report of 24 July 2024 with his opinion that the surgery is reasonably necessary.The discussion about whether the lumbar spine was injured in the motor vehicle accident is framed as an injury to the lower back by way of aggravation of lumbar spondylosis at L5/S1 and it appears facet degeneration, and the respondent acknowledges there is pathology in this area.
The respondent’s submission is that it is not as simple as saying there is the onset of symptoms some time subsequent to the accident.
The respondent submits there was no injury to the lumbar spine primarily for two reasons; it is false that there was a continuation of lumbar symptoms immediately after the accident as on any view the symptoms developed much later in time, and secondly on the basis of the opinion of Dr Spittaler.
In his report of 14 February 2024 Dr Spittaler says the applicant told him he developed lower back pain in January 2023 and it started two to three weeks after he had physiotherapy for his injuries. The doctor examines the applicant, carries out a detailed consideration of the radiological investigations and comments that the main problem seems to be occipital headache and neck pain and that his lower back pain is less of a problem.
Dr Spittaler notes an incidental finding of what is likely to be a sheath tumour anterior to the lumbosacral spine which may be contributing to the applicant’s lumbar and leg symptoms.
The doctor then opines in answering the question of whether the applicant suffered a lumbar spine injury or aggravation of a lumbar spine injury that;
“[i]t is difficult to be dogmatic in answering this question, but I think on balance the answer is probably not. I accept there has been a delay in reporting of the symptoms. There is no acute finding on the lumbar imaging. In addition, there is a possibility that the presumed nerve sheath tumour could be causing some lumbar and leg symptoms, so for all those reasons I think it is more likely than not that the lumbar symptoms were not caused by or significantly contributed to by the motor vehicle accident.
A further point I would make is that the workers seat did not collapse in the accident, making it unlikely there was significant movement of the lumbar spine.
They may relate to the treatment of symptoms from the motor vehicle accident, mainly physiotherapy, which has been suggested by Mr Wood, but I am unable to state that categorically.”[9]
[9] ARD pages 34-35.
Dr Spittaler later in the report says he thinks it is possible but not certain that the lumbar tumour could be leading to some incapacity; “that is, contributing to the worker’s back and leg symptoms, but from a practical perspective I do not believe that is the significant incapacity for work, rather it is due to the cervical symptoms.”[10]
[10] ARD page 36.
The respondent’s submission is that there is still a divorce between the problems referable to the lumbar spine and the accident. The doctor then changes hats so to speak and becomes the applicant’s treating specialist.
In his report to Dr Vo of 10 April 2024 Dr Spittaler simply notes the applicant reports cervical and lumbar symptoms and he does not resile from his earlier opinion. Again in his report to Dr Vo of 18 April 2024 he does not resile from his opinion that there is no causal link between the lumbar spine symptoms and the accident. The doctor does not address this in his most recent report of 24 July 2024.
Dr Isaacs in his report of 6 November 2023 firstly diagnoses the whiplash injury to the cervical spine and secondly aggravation of lumbar spondylosis and L4/5 facet degeneration.
The doctor does not however state why that diagnosis is offered with any particularly. There is at most a tacit acceptance that there were lumbar spine symptoms referable to the accident. Dr Isaacs says in reporting on the history of injury “[i]n addition he also developed pain in the lower back.”[11]
[11] ARD page 23.
On 8 December 2023, the day after the accident, Dr Vo takes a history that the applicant had no arm tingling, ongoing headache, no vision changes, ongoing neck pain and pain in between the shoulder blades. Dr Vo examined the applicant, including examining his spine.
The respondent’s submission is that if there was an immediate onset of lumbar pain it beggars belief that it was not detected at this stage, notwithstanding the primary focus was on the other injuries.
There is no suggestion of a lumbar spine injury in the notes of the next consultations with
Dr Vo of 12 and 13 December 2022. On 22 December 2022 Dr Vo notes the applicant’s vision is back to normal, there is no parathesais or weakness, and left cervical pain persists but is slowly improving. On examination Dr Vo finds mild tenderness of the left cervical paraspinal down to the scapula border, so there is an examination beyond the confines of the applicant’s neck.Dr Vo’s clinical records of 5 January 2023, 10 January 2023 and 18 January 2023 refer to the whiplash injury to the neck, pain in the scapula area, returning to work, the intracerebral haematoma, a good shoulder range of movement and make no mention of lower back pain.
We know from the notes of the physiotherapist the first mention of lower back pain was not made until 20 January 2023.
Dr Spittaler on 14 February 2024 reports the applicant told him he developed lower back pain in January last year and that it started two to three weeks after he had physiotherapy for his injuries.
This does not sit comfortably with Dr Vo saying the applicant reported symptoms in early to mid-January but he did not record that in his notes. The first mention of lower back pain in
Dr Vo’s notes is on 27 June 2023;“[c]oncerned about lower back pain since accident intermittent. Hasnt (sic) improved much. No radicular symptoms. History of Laminectomy/Discectomy in 2000 for disc bulge. Mild B/L lumbar paracervical tenderness. No midline tenderness. Good ROM.”[12]
[12] ARD pages 52-53.
The initial Certificate of Capacity issued on 8 December 2022 only refers to a whiplash injury grade two. The applicant is not doing much during this period with reduced functioning at work and generally because of his neck symptoms, so nothing else could have aggravated it, it just develops in due course.
Dr Vo refers the applicant for physiotherapy on 22 December 2022 in relation to his left sided neck pain. When Dr Vo reports on 21 July 2023 that the applicant sustained a lumbar spine injury resulting from the accident which he disclosed to him in January but he was more concerned at the time with his neck, that does not sit comfortably with the fact that the applicant links it to physiotherapy.
Dr Vo also does not suggest an injury in definitive terms because at this stage he recommends an MRI to assess the lower back, and so it is not a concluded opinion. His opinion would also have to be deferential to that of the more qualified specialists being the orthopaedic surgeon and the neurosurgeon.
Ms Reilly, physiotherapist, in her letter of 28 July 2023 does not provide a definitive conclusion about a lower back injury. At the earlier sessions in January 2023 the applicant did not report symptoms.
The respondent submits the presence of symptoms is not indicative of an injury.
The Hunter Physiotherapy notes show the first consultation took place on 6 January 2023 when the applicant’s neck and thoracic spine were treated, then on 10 January 2023,
13 January 2023 and 17 January 2023 before the reference to the back being aggravated on 20 January 2023. During this period Dr Vo makes no mention of lumbar symptoms.The referral made by Dr Vo to the physiotherapist at Hunter Physiotherapy on
22 December 2022 signed by the applicant on 3 January 2023 only includes as the areas of injury the neck and head. The Allied Health Recovery Request dated 28 April 2023 shows a diagnosis of whiplash nonspecific soft tissue injury with no diagnosis of a lumbar spine injury.The applicant is then referred to Dr Volschenk, pain specialist, who shows on a diagram date stamped 23 August 2023 symptoms limited to the lower portion of the back. There is an earlier iteration of the same diagram date stamped 23 May 2023 where the only areas marked are headaches and neck pain.
The Psychometric Test Scores date stamped 23 August 2023 signed by the applicant on
19 August 2023 show the answer ‘no’ to the question ‘is there a compensation case relating to this episode’, and that the main pain began with a motor vehicle injury.In the referral from Dr Vo to Dr Volschenk dated 25 May 2023 the referral is made in the context of C5/6 radicular pain after a motor vehicle accident with a question mark before injections.
Dr Volschenk’s first report of 30 May 2023 refers to left sided cervical pain as the focus of the treatment. In his report of 23 June 2023 again focus is limited to the cervical spine.
His report of 29 August 2023 refers to the applicant being symptomatic of lower back pain and right sided calf pain which he describes in neuropathic pain descriptors, not typical radiculopathy, some unique sort of pain, which bothers him at night time. There is no definitive comment about the causal link.
Dr Volschenk on 25 September 2023 simply notes the MRI reveals the disc bulge as well as the solid and cystic component mass in the right anterior lumbosacral junction which may be a neurofibroma or Schwannoma. The doctor’s report of 9 November 2023 again talks about symptoms and he does not express a concluded view about the cause.
A/Prof Ferch’s report of 18 May 2023 refers to the haematoma, cervical spondylosis on the left side of the neck with no consideration of any lower back problems. On 7 November 2023 the doctor notes the applicant has been troubled with pain radiating across his back in addition to pain radiating down the posterolateral aspect of his right thigh into his lateral calf. On reviewing the lumbar spine MRI scan he notes the cystic mass lesion which could be consistent with a Schwannoma.
A/Prof Ferch’s report of 30 November 2023 again concludes the applicant is unlikely to benefit from surgery and the probable Schwannoma is to be followed up in a year’s time. There is no pathology referable to the accident.
The applicant in his statement says he subsequently developed pain in his lower back after the accident so there is no immediate onset. He saw Dr Vo in December 2022 when his main concern was in relation to his neck and head injury and possible brain bleed. In June 2023 the applicant began complaining of worsening lower back pain referable to January 2023. The medical expert’s opinions should provide a guide on medical causation and not applicant’s view.
The applicant’s hypothesis is that he told Dr Vo in January 2023 about his injuries including to the lower back but Dr Vo did not record it. There are two consultations before the history suggests the lower back pain developed on 20 January 2023.
Dr Vo in any event does not conclusively state that the lower back injury is referable to the accident given the recommendation for an MRI to investigate it. The referral to the physiotherapist was not in the context of any lower back pain, it was for cervical pain. Symptoms are referred to on 20 January 2023 but with no diagnosis of injury.
The opinions of the orthopaedic surgeons and neurosurgeon should be preferred in any event.
A/Prof Ferch is equivocal about there being a link, as is Dr Volschenk. There is only
Dr Isaacs who in the respondent’s submission does not explain why and proceeds on an incorrect history that there is an immediate temporal causal link. Dr Isaacs does not grapple with the tumour which does not feature at all as part of the reasoning process.The best opinion is that of Dr Spittaler who says it is complicated, he cannot be dogmatic but he thinks the tumour or other pathology is the cause of the lower back symptoms.
This is not simply a case of taking a commonsense approach where there is an accident that happens and there is an immediate onset of back pain. On any view this is deferred for a significant period of time but it is not indicative of an injury. Medical evidence does not provide a basis for actual persuasion that there is a lower back injury.
For these reasons it should not be found that the applicant suffers an injury to his lumbar spine.
Applicant’s submissions in reply
This is a simple case of whether there was an aggravation of the applicant’s lower back condition or not. The applicant’s case is as recorded in the history taken by Dr Isaacs which includes the history of previous back injuries in 1995 and 1998, surgery in 2001 and then there is nothing following the surgery as he fully recovered from the pain in his back and his leg. The applicant had returned to all activities without any problems and to the workforce.
For 21 years the applicant is symptom free then he is in the accident on 7 December 2022 and in January 2023 there are back complaints. We are expected to understand that the traumatic motor accident in December 2022 causes undisputed neck injuries warranting surgery but somehow left the lumbar spine unaffected.
The medico legal consensus is clear in the applicant’s submission, and that is that there is an aggravation as Dr Isaacs has said.
Dr Spittaler provides a diagnosis of lumbar symptoms based on the MRI that are due to an exacerbation of lumbar degenerative disease and that is the respondent’s medico legal case. A/Prof Ferch adds to the medical consensus in his report to the insurer of 24 January 2024.
On the basis of this medico legal evidence there is no difficulty in finding there was an aggravation of the applicant’s lumbar spine condition. Whether the aggravation persists is a question to be answered when the applicant makes a claim for ongoing treatment in relation to the lumbar spine.
There was an aggravation of the applicant’s lumbar spine injury on 7 December 2022 effectively established by the medico legal evidence. It would follow that a finding should be made of injury pursuant to s 4 and a general order made that would flow from that for medical expenses, obviously a matter to be assessed having regard to the proposed treatment and whether it is reasonably necessary.
FINDINGS AND REASONS
Is the applicant entitled to payment of the costs of the C5/6 discectomy and fusion surgery proposed by Dr Spittaler
It is not in dispute that the applicant suffered a cervical spine injury as a result of the accident on 7 December 2022. The issue to be determined is whether the C5/6 discectomy and fusion surgery proposed by Dr Spittaler is reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 at [88] DP Roche set out what are described as “useful heads of consideration” in the context of the criteria of reasonableness:
“(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.”
Dr Spittaler in his supplementary report of 24 July 2024 states that the proposed surgery is reasonably necessary as a result of the applicant’s cervical spine injury.
Dr Spittaler explains why he changes his opinion about the proposed surgery to the cervical spine; Dr Volschenk is offering no further treatment, the right arm symptoms have increased, surgery would be considered appropriate by most spinal surgeons in the situation of radicular pain that persists for more than two or three months with evidence of nerve root compression on MRI, the effectiveness of surgery is reasonably high to relieve arm symptoms although less so in relieving neck pain, and the procedure is a very common neurosurgical procedure with low risk and which is not particularly expensive.
On the basis of Dr Spittaler’s opinion and noting the absence of any evidence to the contrary, I find the proposed C5/6 discectomy and fusion surgery is reasonably necessary medical treatment as result of the injury in accordance with s 60 of the 1987 Act.
Did the applicant sustain a lumbar spine injury on 7 December 2022
The claim to be determined is whether the applicant in addition to his cervical spine injury sustained an aggravation of his lumbar spine disease on 7 December 2022.
Section 4(b)(ii) of the 1987 Act defines ‘injury’ as including a ‘disease injury’ meaning the aggravation, acceleration, exacerbation or deterioration of an existing disease 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.
‘Disease’ is a word of very wide import and includes any form of illness.[13] There is no dispute that the applicant has pre-existing lumbar spine disease.
[13] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
The respondent disputes that the applicant’s lumbar spine disease was aggravated in the course of employment on 7 December 2022, and that the employment was the main contributing factor to the aggravation. If those components are demonstrated on the evidence the applicant will have established that he has suffered a ‘disease injury’ and is entitled to workers compensation benefits.[14]
[14] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 287.
The aggravation of a disease occurs where the symptoms and restrictions emanating from it increase and become more serious to the applicant.[15]
[15] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 at [17].
The evidence supports that there has been an increase in or more serious symptoms of the applicant’s lumbar spine condition as a result of the injury.
The applicant’s statement evidence, supported by the evidence of Dr Vo and Ms Reilly, is that within a few weeks of the accident he reported symptoms of lower back pain. Dr Spittaler reported the applicant had lumbar symptoms since the accident and he told the doctor he developed lower back pain in January 2023.
Dr Volschenk and A/Prof Ferch note the applicant’s lower back symptoms and the lumbar spine MRI demonstrated a posterior disc bulge at L4/5 and mild facet joint arthropathy at L4/5.
The respondent’s submission is that there was no injury to the lumbar spine as on any view the symptoms developed much later in time.
Ms Reilly records a complaint of lumbar pain on 20 January 2023, within weeks of the accident. Dr Vo states in his report of 21 July 2023 that he did not record the applicant’s complaints of lumbar pain made to him in January 2023.
I agree with the applicant’s submission that caution should be exercised when relying on clinical records, particularly those of busy general practitioners.[16]
[16] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [54] – [55], NSW Police Force v Winter [2011] NSWCA 330 at [73].
The applicant also makes the submission that it is frequently the case that an injured worker who suffers injuries will concentrate on the most acutely affected body part.
The applicant’s statement evidence is that his main concern when he first saw Dr Vo was in relation to his neck and head injury and a possible brain bleed. The medical evidence shows that in addition to the neck injury, a haematoma or haemangioma was investigated which fortunately did not require treatment. This supports the applicant’s submission that he concentrates on the most acutely affected body parts.
Based on the evidence I do not accept that the applicant’s lumbar pain symptoms developed much later in time. I accept the applicant complained of low back pain following the accident at least by 20 January 2023.
Dr Vo in the respondent’s submission does not suggest in his letter of 21 July 2023 an injury in definitive terms and his recommendation an MRI be carried out to assess the lower back supports that. I agree with the respondent generally however that more weight ought to be placed on the opinions of the orthopaedic surgeons and the neurosurgeon.
While Ms Reilly describes symptoms and does not provide a definitive conclusion about a lower back injury, again in my view more weight ought to be placed on the specialist medical evidence.
Dr Isaacs diagnoses aggravation of lumbar spondylosis and/or L4/5 facet degeneration. The respondent submits that Dr Isaacs does not with any particularity state why he makes this diagnosis. I do not accept that submission. Dr Isaacs takes a detailed history, reviews the investigations, examines the applicant and makes that diagnosis.
The respondent submits that A/Prof Ferch does not refer to any pathology of the lumbar spine in his report of 30 November 2023. The diagnosis in the subject line of this report is “Cystic right anterior lumbosacral mass – possible Schwannoma.”[17] A/Prof Ferch discussed the option of monitoring the applicant’s probable Schwannoma and suggested a follow up scan in a year’s time.
[17] ARD page 267.
In addition to the cervical spine injury, headaches, a haematoma or brain bleed and lower back pain, the applicant was also advised of an incidental finding of this lumbosacral mass. This appears to have been the priority of A/Prof Ferch’s examination of the applicant on
7 November 2023 following which he prepared this report.In his medico legal report of 24 January 2024 A/Prof Ferch does provide the diagnoses of neck pain and lower back pain, and comments that imaging has demonstrated degenerative spondylosis without neural compromise at both sites.
I note there is no medical or other evidence before the Commission contradicting the evidence including that of the applicant, Dr Vo, Dr Isaac and Dr Spittaler that the applicant was asymptomatic in relation to his lumbar spine before the accident on 7 December 2022.
I am persuaded on the basis of the whole of the evidence that the applicant experienced an aggravation of his lumbar spine condition as a result of the accident on 7 December 2022.
The next question of whether the employment was the main contributing factor involves consideration of whether there were competing causal factors of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
This is not purely a medical question, although medical evidence is both relevant and desirable, and it involves an evaluative process with a consideration on the whole of the evidence.[18]
[18] AV v AW [2020] NSWWCCPD 9.
I accept employment was the main contributing factor to the aggravation of the applicant’s lumbar spine disease for the reasons below.
The applicant submits that as a matter of commonsense it should be accepted that there is a causal connection between the accident on 7 December 2022 and the applicant’s lumbar spine symptoms.
A/Prof Ferch is of the opinion that the applicant’s lower back pain was triggered by the work-related injury and I accept this opinion.
The respondent submits that A/Prof Ferch is equivocal on the issue of a causal link however in his report of 24 January 2024 he provides his opinion that the applicant’s neck pain, low back pain and headaches are current work-related injuries.[19]
[19] ARD page 269.
Dr Isaacs is of the opinion that the accident was the main contributing factor to the aggravation of the applicant’s lumbar spondylosis and/or L4/5 facet degenerative. I accept
Dr Isaac’s opinion.The respondent submits that Dr Isaacs forms his opinion on the basis of an incorrect history that there was an immediate temporal causal link, and that the doctor does not grapple with the incidental finding of a sheath tumour.
In relation to the history of the injury, Dr Isaacs records a whiplash injury, frontal intracerebral cavernoma and haematoma and says that in addition “he also developed pain in the lower back.”[20] He notes the applicant complained of lower back pain on 20 January 2023. This is consistent with the applicant’s statement evidence and the evidence of Dr Vo and Ms Reilly. I am of the view that Dr Isaac’s opinion was formed in a “fair climate”.[21]
[20] ARD page 23.
[21] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505.
In relation to the sheath tumour, A/Prof Ferch on 24 January 2024 notes the anterior lumbosacral mass or possible Schwannoma is likely to be a benign tumour, not currently generating any symptoms, is unrelated to the motor vehicle accident and likely to be a pre-existing abnormality.
On the basis of that evidence, it appears the incidental tumour has had little or no impact on the applicant’s lower back symptoms. Not referring to the incidental finding of a sheath tumour in these circumstances does not in my view undermine Dr Isaacs’ opinion.
I accept the respondent’s submission that both Dr Vo and Dr Volschenk do not provide an opinion on a causal link. Dr Vo as a general practitioner is perhaps not well placed to provide such an opinion, and Dr Volschenk does not address the issue of causation.
The respondent relies on the opinion of Dr Spittaler in his report of 14 February 2024.
Dr Spittaler says that while it is difficult to be dogmatic, on balance employment was probably not the main contributing factor to the applicant’s lumbar spine injury. He refers to the delay in reporting of the symptoms which I have not accepted.
Dr Spittaler refers to there being no acute finding on the lumbar imaging. I note the opinions of Dr Isaacs and A/Prof Ferch above in this regard which I have accepted.
In relation to competing causal factors, Dr Spittaler refers to the possibility that the presumed nerve sheath tumour could be causing some lumbar and leg symptoms. Based on other evidence including the report of A/Prof Ferch of 24 January 2024 I do not accept that this is likely to be the case.
Dr Spittaler refers to the applicant’s seat not collapsing in the accident making it unlikely there was significant movement in the lumbar spine. I note Ms Reilly’s comment in her letter of 28 July 2023 that given the applicant’s previous history of lower lumbar surgery it is not surprising that this is easily aggravated by thoracic stiffness and associated muscle guarding.[22] Dr Spittaler’s view on this point finds no support in the other medical evidence before the Commission.
[22] ARD page 219.
Dr Spittaler refers to the view suggested by the applicant that his lumbar pain relates to the physiotherapy treatment, but the doctor is unable to state that categorically.
While causation is not purely a medical question, I accept the respondent’s submission that the applicant’s evidence on the cause of his low back pain should not be accepted in the absence of other evidence. There is no other evidence before the Commission that the applicant’s lumbar pain relates to the physiotherapy treatment.
The respondent submits that Dr Spittaler does not resile from this opinion in his later reports of 10 April 2024 and 18 April 2024. These reports were prepared as a treating specialist and address the applicant’s cervical spine symptoms and treatment.
I prefer the opinions of Dr Isaac and A/Prof Ferch to that of Dr Spittaler for the reasons outlined above.
I find based on a consideration of all of the evidence that the employment was the main contributing factor to the aggravation of the applicant’s lumbar spine disease.
I am persuaded on the balance of probabilities the applicant sustained a lumbar spine injury as a result of the accident on 7 December 2022.
SUMMARY
The C5/6 discectomy and fusion surgery proposed by Dr Spittaler on 18 April 2024 is reasonably necessary as a result of the applicant’s cervical spine injury on 7 December 2022 pursuant to s 60 of the 1987 Act.
There will be an order that the respondent is to pay the costs of and incidental to the proposed C5/6 discectomy and fusion surgery.
The applicant sustained an aggravation of his lumbar spine injury as a result of the accident on 7 December 2022 pursuant to s 4 of the 1987 Act.
There will be an order that the respondent is to pay the costs of reasonably necessary medical expenses arising from the aggravation of the applicant’s lumbar spine injury pursuant to s 60 of the 1987 Act.
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