Woolworths Limited v Waterhouse - [2008] NSWWCCPD 131

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Woolworths Limited v Waterhouse and Anor [2008] NSWWCCPD 131
APPELLANT:	Woolworths Limited
FIRST RESPONDENT:	Renee Kathleen Waterhouse
SECOND RESPONDENT	Woolworths Limited (in its capacity as self insurer)
INSURERS:	1. CGU Workers Compensation (NSW) Limited Agent for the NSW WorkCover Scheme (on risk from 31 October 1990 to 30 October 1999) 2. QBE Workers Compensation (NSW) Limited (on risk from 31 October 1999 to 31 October 2000)
FILE NUMBER:	WCC2550-08
DATE OF ARBITRATOR’S DECISION:	15 July 2008
DATE OF APPEAL DECISION:	4 November 2008
SUBJECT MATTER OF DECISION:	Whether decision supported by the evidence; relevance; reasons for decision; weight of medical evidence; causation and liability; section 60 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
HEARING:	Determined on the papers
REPRESENTATION:	Appellant:		Sparke Helmore
First Respondent:		Monaco Solicitors
Second Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:	The decision of the Arbitrator dated 15 July 2008 is confirmed
The Appellant is to pay the costs of the appeal of the First Respondent and the Second Respondent

BACKGROUND

On 12 August 2008 Woolworths Limited (‘Woolworths/the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 July 2008.

The First Respondent to the Appeal is Ms Renee Kathleen Waterhouse (‘Ms Waterhouse/the First Respondent’). The Second Respondent in the appeal is Woolworths Limited (in its capacity as self insurer) (‘Second Respondent’).

The Appellant’s Insurer and “lead agent” in the matter was/is CGU Workers Compensation (NSW) Limited, Agent for the NSW WorkCover Scheme (on risk from 31 October 1990 to 30 October 1999) and QBE Workers Compensation (NSW) Limited (on risk from 31 October 1999 to 31 October 2000). Woolworths became a self-insurer after 31 October 2000.

Ms Waterhouse commenced employment with Woolworths on 24 July 1994 as a part time delicatessen assistant. In December 1996 she commenced working full time as a trainee delicatessen manager and became a delicatessen manager some time in 1999 at Woolworths, Carlingford.

On 20 May 1999 Ms Waterhouse claims that she suffered an injury to her back while lifting a box of chickens at her place of employment. She reported the accident and consulted her General Practitioner Dr McKenzie who sent her for x-rays and provided her with a medical certificate. Ms Waterhouse recorded in her unsigned statement dated 21 February 2008, that she returned to work after two days off. However, her back remained sore and she was “forced to take painkillers to continue working”.

Ms Waterhouse also stated that after the injury she continued to move stock regularly in the course of her employment with Woolworths, and that she found this frequently caused her to experience episodes of back pain. As a result she received chiropractic treatment from Mr Alfred Deffert in order to obtain some temporary relief.

On July 2000 Ms Waterhouse was lifting twenty kilo tubs of chickens at work, when she says she experienced severe pain in her lower back and a feeling of weakness in her legs. She consulted Dr McKenzie who referred her for a lumbar spine x-ray, which was performed on 8 July 2000. Ms Waterhouse continued to experience significant back pain and also continued to visit Mr Deffert for chiropractic treatment. The treatment was comprised of manipulation of the lumbar spine, which again provided her with some temporary relief.

In 2001, to supplement her full time employment with Woolworths, Ms Waterhouse commenced working at Jewellery Group Pty Ltd trading as Viviens Jewellers (‘Viviens’). She managed the store and was not required to do any heavy lifting. By 15 August 2002 Ms Waterhouse ceased working full time with Woolworths, stating, “I had abandoned my plan of making a career at Woolworths as my back was very painful, and I realised that my job would continue to require that I lift heavy weights”.

By mid September 2002, while still working full time at Viviens, she commenced working as a permanent part time employee with Woolworths in Hornsby, for three to four nights per week. At this time she began experiencing repeated and significant episodes of back pain while working her shifts. As a result she resigned from her position as a permanent part time employee but began working as a casual employee with Woolworths on 12 December 2002 as a “night filler”, on one to two nights per week. These duties included bending, lifting and twisting to replenish shelves at different levels.

Ms Waterhouse found that this was too demanding on her back and she commenced full time work with Viviens. However, after a few weeks she resumed concurrent employment with Woolworths as a night packer.

Ms Waterhouse experienced an episode of severe back pain on 12 January 2003 when standing up at home. She claims that this episode was a result of her earlier injuries.

On 2 April 2004 Ms Waterhouse suffered another episode of severe back pain causing her to stumble down some stairs at Hornsby railway station while on her way to work at Viviens. Again she claims that the episode was a result of her earlier injuries.

Ms Waterhouse underwent surgery, being a microdiscectomy and rhizolysis at L4-5 and L5-S1, performed by Dr Kam, on 30 July 2004. Following the surgery she was unfit to return to work for a period of seven weeks, resuming on 17 September 2004. At this stage she was only able to undertake part time employment up until 6 October 2004. Ms Waterhouse continued with treatment including an epidural injection, but states that this did not improve her condition.

In her statement of 21 February 2008, Ms Waterhouse states:

“On consulting several specialists, it was determined that I required significant back surgery. I continued working on and off up until the time of my surgery, receiving weekly payments from Vivien’s throughout this period.”

She states that on 23 April 2004 Woolworths ceased making weekly payments to her and also ceased paying for any further medical expenses. She says that Woolworths informed her that she would require a full medical clearance in order to return to work, and failing this, her services would be terminated.

Ms Waterhouse states that she used her long service leave from Woolworths to support herself following the surgery to her back. She resumed part time employment with Viviens between 17 September 2004 and 6 October 2004. However, she was unable to obtain a full medical clearance and Woolworths terminated her employment on 14 February 2005.

Ms Waterhouse states that the surgery did not provide sustained improvement and she still continues to suffer a degree of pain.

Ms Waterhouse states that on 19 October 2005 Woolworths agreed to pay her compensation for the impairment to her back and the loss of use of both right and left legs as a result of the injury sustained at Woolworths in 1999.

She states that on 10 May 2007, Woolworths informed her that it was declining liability for her claim on the basis that she had not suffered an injury arising out of or in the course of her employment, “that is, your condition is not considered related to your employment with Woolworths Limited. Work was not a substantial contributing factor to your injury.”

Ms Waterhouse says that she continues to undergo regular medical treatment for her low back pain, and for the resultant pain and weakness in her legs. She states, “My general practitioner has referred me for physiotherapy, Pilates, swimming, massage, analgesic and painkilling medication, and it is directed that I attend a gymnasium for controlled exercises to strengthen my back.”

Since leaving Viviens in October 2005, Ms Waterhouse has worked for Kleenmaid as a sales assistant, but left in November 2006 to take up a position with Veolia Environmental Services, initially as a customer service officer, but on 15 February 2008 she received a pay rise following her appointment to the position of Area Sales Manager.

On 7 April 2008 Ms Waterhouse lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly payments of compensation from Woolworths for full incapacity for the period 30 July 2004 to 17 September 2004 at the rate of $80 per week and from Viviens, for the same period, at the rate of $807.69 per week. In addition, she claimed weekly compensation for partial incapacity from Viviens from 17 September 2004 to 6 October 2004 at the rate of $439.27 per week. Ms Waterhouse also sought expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the amount of $22,181.13.

The dispute came before an Arbitrator in due course and on 15 July 2008 a ‘Certificate of Determination’ was issued with an award in favour of Ms Waterhouse.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 15 July 2008 records the Arbitrator’s orders as follows:

“The Commission determines:
1.That the First Respondent (Woolworths Limited) should pay the Applicant the following:
a.Weekly benefits in the sum of $513.51 for the following periods
i.30 July 2004 to 17 September 2004 under Section 36
ii.17 September 2004 to 6 October 2004 under section 40

b.Section 60 expenses of $19,254.68
c.The Applicant’s costs as agreed or assessed in accordance with paragraphs 39 and 40 of the Reasons for this Determination.

2.That the payments referred to above to be made by the Respondent Woolworths are to be paid by the insurer or insurers who were on risk up to 31 October 2000.”

ISSUES IN DISPUTE

Woolworths’ appeal is directed at Arbitrator error and submits that the Arbitrator erred at law, in the following ways, in making his decision:

a.the decision was not supported by the available evidence;

b.the Arbitrator took irrelevant matters into consideration;

c.   the Arbitrator ignored relevant evidence;
d.   the Arbitrator failed to provide proper reasons in support of the decision, and
e.   the Arbitrator accorded undue weight to the worker’s medical evidence.

Woolworths make submissions under the specific headings “Liability for surgery and the consequent incapacity” and ”treatment expenses”. Both Respondents have addressed the grounds of appeal under these headings. Ms Waterhouse has responded more widely by also responding to the fundamental errors of law alleged by Woolworths.

The issues in dispute before the Arbitrator are set out in [15] of his ‘Statement of Reasons’ (‘Reasons’), as follows:

“a.Which injury or injuries caused or contributed to the need for surgery.
b.Having decided the injuries that caused or contributed to the need for surgery, what is the appropriate pre-injury earning of the Applicant and then her entitlement to weekly compensation.
c.Whether certain of the treatment expenses claimed by the Applicant are reasonably necessary in terms of Section 60 of the Workers Compensation Act 1987 (the 1987 Act).”

At [7] of his Reasons, the Arbitrator states:

“The complex issues in the proceedings were able to be dealt with efficiently largely because the lawyers took a very sensible approach to the matter and actively assisted me in narrowing the issues in dispute. I thank them for approaching the matter in such a sensible way and for their assistance.”

In the process of narrowing the issues, the chronology set out by the Arbitrator in his Reasons was agreed between the parties. The Arbitrator states at [8] – [14] of his Reasons:

“8.The following chronology was not in dispute:

a.The Applicant commenced work for Woolworths in about 1994.
b.20^th May 1999 the Applicant suffered an injury to her back while working for Woolworths. She was lifting when the injury occurred and was engaged in the Delicatessen Department.
c.3^rd July 2000 the applicant suffered another injury working for Woolworths again while lifting.
d.15^th August 2002 the Applicant decided that she cannot continue to work with Woolworths full time as it is too hard on her back. She began work with Viviens full time.
e.12^th January 2003 the applicant suffered a severe back problem after standing up at home. She claims that this episode is as a result of the earlier injury/s.
f.2^nd April 2004 the Applicant suffered another episode of severe back pain and fell down the stairs at a railway station while on her way to work. She claims that this episode is as a result of the earlier injury/s.

9.All parties agree that while the Applicant did suffer from some degenerative disease in the relevant area of her back even prior to the injury of 20 May 1999, she did not suffer any symptoms and there is no evidence that the degenerative condition would have become symptomatic had it not been for the injuries.

10.The Applicant complained that while at work with Woolworths the lifting and physical nature of her work caused symptoms in her back, on occasions increased pain and discomfort.

11.She did not have any time off work that was not compensated by Woolworths or Viviens until the surgery took place on about 30th July 2004.

12.The surgery was a microdiscectomy and rhizolysis at L4-5 and L5-S1 performed by Dr Kam.

13.In November 2005 the Applicant and Woolworths entered into a Section 66A agreement in relation to the injury of 30 May 1999 in which she was compensated for a 20% permanent impairment of the back and 5% permanent loss of use of each leg at or above the knee.

14.Ms Wood for Woolworths accepted on their behalf that Woolworths is estopped from denying an injury on 30^th May 1999 and that the injury of that date had led to a permanent impairment of the back and legs.”

REVIEW ON APPEAL

The conduct of a review on appeal by a Presidential member, of an Arbitrator’s decision is not limited to the identification and correction of error, although the Arbitrator’s treatment of the evidence and his/her findings need to be considered in the process of the review, in arriving at a conclusion as to whether or not the decision under review is correct. I have regard to, and am guided by, the views expressed by the Court of Appeal as to the nature of the review to be conducted on appeal, by a Presidential member of the Workers Compensation Commission (see discussion on review by a Presidential member of the Commission, in Council of the City of Sydney v Estate of Belinda Jane Griffey and Anor (No. 1) [2008] NSWWCCPD 114, at [56] – [71]).

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

The amount of compensation at issue on appeal is both at least $5,000 and 20% of the amount awarded in the decision appealed against, as required by section 352(2) of the 1998 Act.

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Leave to appeal is granted.

EVIDENCE, SUBMISSIONS, DISCUSSION AND FINDINGS

Woolworths as the Appellant, Ms Waterhouse, and Woolworths as self-insurer and Second Respondent in the Appeal, each provided written submissions on appeal, including further background details.

By way of further background information, Woolworths point out that Ms Waterhouse underwent spinal surgery on 30 July 2004. It goes on to say:

“7.The worker alleged the following injuries:

a. A lifting injury on 20 May 1999 when in the employ of Woolworths Limited
b.A further lifting injury on 3 July 2000 again in the employ of Woolworths
c.Injury by way of the nature and conditions of employment with Woolworths Limited for the entire period of employment with Woolworths Limited
d.A journey injury on 2 April 2004 when in the employ of the second Respondent, Vivienne’s [sic] Jewellers

8.Relevantly the worker suffered a severe onset of pain at home on 12 January 2004 when she stood after sitting.

9.Liability for the periods of incapacity was disputed by all insurers, although it was accepted that the worker was incapacitated as alleged.

10.The worker also claimed alleged treatment expenses totalling $19,254.65 in accordance with a schedule provided by her legal representatives.

11.The treatment expenses were put in issue by the appellant as not being reasonable and necessary expenses related to any injury suffered by the worker as a result of any injury suffered by the worker prior to 31 October 2000.

12.Liability for treatment expenses were also disputed by Woolworths Limited as the Self insurer and by the second employer, Viviennne’s [sic] Jewellers Pty Ltd.”

Ms Waterhouse also provides further background comments, as follow:

“i)Pursuant to S66A of the 1987 Act the Appellant as Woolworths (CGU) on risk for the period from 31-10-1990 entered into an agreement with the respondent Worker on 27-7-2005 (date of agreement – see page 2 of 66A agreement signed on 30-8-05 and 20-11-05) to pay her lump sum compensation in respect of 20% permanent impairment of the back and 5% permanent loss of efficient use of both the right and left legs at or above the knee in respect of injury to her back on 20-5.1999. (See paragraph numbered 6.2.1 of the Application to Resolve Dispute filed).

ii)The employers admitted that the worker’s back surgery was treatment that was reasonably necessary as a result of an injury or injuries that the worker sustained at work. (See paragraph 2. of arbitrator’s statement of reasons).

iii)The worker had continued to work full time for Woolworths since December 1996 (40 hours per week) performing heavy work and had continued to work part time performing light work with Viviens from 2001 and for a period was in dual employment with Woolworths and Viviens. (See paragraphs 4,5 & 11 of statement of worker dated 21-2-2008 attached to ARD).

iv)On 15-8-2002 the worker decided that she could not continue with work at Woolworths full time as it was too hard on her back. She began work with ‘Viviens’ full time as a jewellery shop manageress. (See paragraph 8 d of arbitrator’s statement of reasons).

v)In September 2002 the worker re-commenced part-time work with Woolworths working 3 to 4 nights per week averaging 12 hours per week whilst in dual employment and still working with ‘Viviens’ full time. (See paragraphs 14 & 15 on page 3 of worker’s statement dated 21.2.2008).

vi)Around September 2002 the worker experienced repeated and significant episodes of back pain while working shifts at Woolworths. Because of this she was forced to minimise her hours worked and so she resigned her permanent part time position at Woolworths and began working reduced hours at Woolworths as a casual employee from 12-12-2002 working as a night filler in 4 hour shifts one to two days per week. (See paragraphs 15 and 16 of the statement of the worker dated 21-2-2008).

vii)There was agreement as to the rate of compensation. ‘The parties agreed that if I found that the Injury/s for which the Applicant is to be compensated for her time off work in 2004 were those in 1999 and 2000 then her pre-injury wage was $513.51 and that she is entitled to compensation in this amount under either s36 or Section 40 for the periods in question.’ (See paragraph 30 of the arbitrator’s statement of reasons).

viii)‘The Respondents questioned the reasonable necessity of claims for a television while in hospital, gym programs and massaging. They did not question the other expenses.’ (See paragraph 33 of the arbitrator’s statement of reasons).”

Woolworths as Second Respondent states that it “does not disagree with, and accepts, the background set out in paragraphs 1-12 of the appellant’s submissions.”

Given that much of the factual background is not in dispute and that the issues were narrowed by agreement between the parties in the procedings before the Arbitrator, the decision of the Arbitrator is reviewed taking these factors into account.

I note that the Arbitrator found that the nature and conditions of Ms Waterhouse’s work at Woolworths was not a substantial contributing factor to the injury that led to the requirement for surgery (see [24] - [26] of the Arbitrator’s Reasons). He further found at [27], “It follows from these findings that the incident that occurred on the way to work, it being a spontaneous onset of back pain, also did not result in an injury that resulted in a need for surgery.”

At [28] the Arbitrator said:

“In summary on this issue, I find that the incidents of 20 May 1999 and/or 3 July 2000 were the cause of the need for surgery and other treatment. The nature and conditions of employment in my view did cause a separate injury but that injury is not causative of any compensable loss claimed in these proceedings.”

The Arbitrator noted earlier in his Reasons, at [20] that Woolworths argued that the injury that occurred at home on 12 January 2003, which was not compensable, was the cause of the need for surgery. He said, “They based this argument on the report of Dr Wilding of 14 April 2004.” The Arbitrator did not accept that evidence as, “his report:

a.Is out of step with the other reports in the matter particularly Dr Weisz, Dr Kam who did the surgery (see the history of his report of 29 April 2004 in which he clearly attributes the need for surgery to the incidents at work) and Dr Stenning.
b.Does not address the fact that the diagnosis of a discogenic lesion suggests some trauma to cause the injury. There is not a report of any fall or incident apart from standing up in the incident of 12 January 2003 or the fall while on her way to work. In neither of these incidents is there any evidence of trauma that brought about the pain she suffered on those occasions.
c.Is inconsistent with the Applicant having suffered with leg pain before the later incidents.”

The medical practitioners referred to in these Reasons are:

·Dr Andrew Kam, treating Neurosurgeon and Spinal Surgeon
·Dr Charles New, treating Orthopaedic and Spinal Surgeon
·Dr Henry Stenning, Practitioner in Musculoskeletal Medicine, qualified by Ms Waterhouse
·Dr George Weisz, Orthopaedic Surgeon, qualified by Ms Waterhouse
·Dr Jeff Beder, treating General Practitioner
·Dr McKenzie, treating General Practitioner
·Dr Michelle Atkinson, treating Orthopaedic Surgeon
·Dr Arun Aggarwal, treating Neurologist
·Dr Kalev Wilding, Orthopaedic Surgeon qualified by Woolworths

Liability for surgery and incapacity

Woolworths’ (the Appellant) submissions

Woolworths submits that it is not open to the Arbitrator to determine that Dr Wilding’s report was “out of step” with the reports of Dr Kam and Dr Stenning. It further submits that it is “insufficient reasoning to discard a medical opinion because it is ‘out of step’ with a contrary medico-legal opinion.” It asserts that Dr Kam provided no opinion in respect of causation and Dr Stenning, while having a history of the aggravation in January 2003 “has not recorded that event as occurring outside of the workplace. Dr Stenning opines, “I assume that the substantial contributing factor to your client’s present condition has been her occupation.” Woolworths submits that Dr Weisz, in his report dated 20 March 2005, took a history of the heavy nature of Ms Waterhouse’s duties, two incidents in 1999, one incident in 2000, the incident at home in January 2003 and the journey injury in April 2004. Moreover, Dr Weisz states, in part, “It is almost impossible retrospectively to consider the effect of each accident, each having some impact on her condition … This would leave the last event, namely the incident in 2000 as the major culpable, with only minimal effects of two previous events, with some 5% responsibility each.”

Woolworths further submits that it is not open to the arbitrator to discard the opinion of Dr Wilding on the basis that there was “no fall or incident” causing trauma in the incident at home in January 2003 (paragraph 20(b)). It asserts that the history provided by Ms Waterhouse to the doctors and in her statement was that she suffered a severe onset of pain at the time when she stood from a sitting position. Woolworths submits that this constitutes an event, which may have caused injury, in accordance with the opinion of Dr Wilding. It says that the Arbitrator has given no reason or no sufficient reason for discarding the opinion of Dr Wilding. It further submits that the Arbitrator has placed undue weight on the opinion of Dr Stenning, a general practitioner, as opposed to that of Dr Wilding, an orthopaedic surgeon.

Next, Woolworths note that at [21] of the Arbitrator’s Reasons, he found:

“… the pathology, that is the disc damage was caused in either the incident in 1999 or the incident in 2000 when working for Woolworths.”

Woolworths submits that in arriving at that finding, the Arbitrator states that it is consistent with the opinion of Dr Kam and Ms Waterhouse’s evidence that she had no symptoms prior to the first injury, and thereafter suffered intermittent symptoms. It submits “once again” that nowhere in either of the two reports in evidence, provided by Dr Kam, “does he take a history of injuries other than a period of heavy lifting during 2000, and nor does that doctor provide an opinion on causation.” Woolworths submits that the Arbitrator has made a finding that is not supported by the evidence, “or alternatively the Arbitrator has not provided adequate reasons for such a finding.”

Woolworths then point to [23] of the Arbitrator’s Reasons, noting that he accepted Ms Waterhouse’s submissions that she had suffered injury in the form of a disease, as a result of the nature and conditions of employment. The Arbitrator goes on to say at [24]:

“… I do not think that the nature and conditions injury she suffered was in the relevant sense as required by Section 9A of the 1987 Act causative of the loss as it was not a substantial contributing factor to the injury that caused the need for surgery.”

In this regard Woolworths submits:

“It is submitted that the Arbitrator has misapplied the law in invoking S9A. S9A provides the requirement that employment must be a substantial contributing factor to an injury before it is compensable. In this paragraph of his reasons for determination the Arbitrator appears to be applying S9A to determine whether the nature and conditions of employment has [sic] contributed to the pathology requiring surgery, having found earlier in that paragraph that the nature and conditions of employment had caused the worker further injury. This is, in the Appellant’s respectful submission, a patent misconstruction of the application of that section.”

Woolworths submits the Arbitrator’s reasons at [25] of his Reasons are flawed in that:

“a)The incidence of spontaneous back pain is insufficient to establish that the relevant disc pathology was caused by the initial two frank injuries, particular in the light of the worker’s own evidence that:
b)the pain consequent upon the 1999 injury was intermittent,
c)the heavy work continued,
d)prior to [sic] incident at home conservative treatment was recommended and followed

e) it was only after the incident at home that surgery became a consideration
f) The Arbitrator considered it relevant that there was no frank injury.
g)There was no evidence that the pain over a period of time would ‘usually get better’ and would diminish when ‘the work aggravation ceased’. The available evidence was from the worker that the symptoms eased partially when she ceased working for Woolworths Limited in August 2002.”

Finally, Woolworths submits that on the basis of the medical and factual information before the Commission, the Arbitrator should have attributed all of the liability, or at least a proportion of the liability to Woolworths Limited in its capacity as the self insurer, being the last insurer on risk for a period greater than twelve months, when the incapacity arose.

Ms Waterhouse’s submissions

Ms Waterhouse submits that, the Arbitrator’s findings in relation to the 1999 and 2000 injuries as the cause of her injury were entirely consistent with the opinion of Dr Weisz. She submits that Dr Wilding failed to deal specifically with the history of injuries in 1999 and 2000 and “merely and fleetingly dealt with them”. She says that Dr Wilding failed to deal with the relevant history as set out in her statement, to the effect that she could no longer carry on with her permanent employment from August 2002 due to back pain. Dr Wilding reported intermittent episodes of low back pain, contrary to the evidence as accepted by the Arbitrator. She submits that contrary to the report of Dr Wilding, the report of Dr Weisz dated 20 March 2005 contains the detailed descriptions of injury on page 2 and in relation to the second frank injury described as occurring in July 2000, he records that back pain was persisting, and she required medication but had no time off work. He went on to report that she changed her duties to selling jewellery in 2002, “a much lighter duty”.

Furthermore, she submits that the Arbitrator’s finding that the need for surgery was due to disc damage caused in either the incident in 1999 or 2000 when working with Woolworths, was consistent with her statement, indicating that she had continuing pain in her lower back after the 1999 and 2000 incidents. This, she maintains, caused her to cease full time employment with Woolworths in August 2002, and that pain continued up to the incident of January 2003. Ms Waterhouse cites Dr Stenning’s report of 11 August 2003, in support of this finding.

Ms Waterhouse submits that the history in Dr Wilding’s report in relation to the incidents of injury in 1999 and 2000 “was lacking both in relation to proper consideration of those injuries in his report and the history of the need for the worker to change employment due to continuing back pain as at August 2002 …and in addition as to the history of feeling that with the pain she was losing control of her legs as recorded by Dr Stenning when dealing with her history as at 3-7-2000 in paragraph 1 on page 2 of his report of 11 November 2003.” She maintains that this together with the opinion of Dr Weisz is in stark contrast with Dr Wilding’s opinion that she was “able to cope with her work duties until 12 January 2003”. Ms Waterhouse submits that the Arbitrator was correct in finding that Dr Wilding’s report was “out of step” with the other reports, and he was correct in rejecting Dr Wilding’s opinion.

Ms Waterhouse further submits that the Arbitrator gave due consideration and weight to Dr Wilding’s report, along with the other evidence in the proceedings. He relied upon the opinions of Dr Weisz, Dr Stenning and Dr Kam, in preference to that of Dr Wilding, for the reasons given. His conclusions are based upon an analysis of these reports. Ms Waterhouse states:

“Having so considered that body of medical evidence, and having chosen to reject the opinion of Dr Wilding the arbitrator then made the finding … that the disc damage was caused in either the incident in 1999 or the incident in 2000.

The arbitrator then states ‘this finding is consistent with the opinion of Dr Kam who performed the surgery and the evidence of the applicant herself that she had no symptoms until the first incident and then began to have intermittent symptoms, some not brought on by any exertion (for instance the incident of 4 January 2003 and the incident where she suffered back pain so severe that she fell down the stairs).
The arbitrator clearly has not premised his opinion as to causation solely upon the report of Dr Kam when he states that his finding already made is ‘merely’ consistent with the opinion of Dr Kam. His reasons for so finding certainly include the report of Dr Kam but more so are seen to include the opinions of Dr Weisz and Dr Stenning as accepted by the arbitrator in paragraph 20 beforehand.
The Respondent Worker submits that the Appellant has not given proper consideration to the context in which the decision was delivered and has not had regard to the surrounding reasons when making the submission made in relation to paragraph 21 as contained in its submissions 10, 11, 12 and 13.”

Ms Waterhouse concedes that the Arbitrator misapplied section 9A of the 1987 Act at [24] of his Reasons. However, it can be seen by reference to his decision that he did not consider that there was any ongoing residual effect of any injury by reason of nature and conditions of employment. She submits that the error does not affect the ultimate result as it is evident that the Arbitrator did not consider that work-related aggravation caused by the nature and conditions of employment, was of a continuing nature and that there was no evidence, in the absence of the frank incidents of injury referred to, that the nature and conditions had caused a change in pathology in her lumbar spine.

Having regard to the evidence, Ms Waterhouse contends that the Arbitrator “did not err in his determination as to causation of the loss being due to the frank incident in year 1999 or 2000 as found.”

Ms Waterhouse submits that the Arbitrator found that there was insufficient evidence upon which any loss from the nature and conditions of employment could be seen to arise from “such aggravations as distinct from the effect of the initial injury.” She goes on to say, “Clearly the arbitrator considered any such aggravation as transient when one reads paragraph 25c and 26 of his reasons but not so the effect of the initial injury(s) of 1999 or 2000.”

Woolworths’ (the Second Respondent) submissions

Woolworths as self-insurer, agrees and accepts the background set out in paragraphs 1-12 of Woolworths (the Appellant) submissions on appeal. It states:

“In determining the dispute the critical findings of the arbitrator, set out in paragraph 21 of the Statement of Reasons and repeated in paragraph 28, is that injuries on 20 May 1999 and/or 3 July 2000 were causative of the need for surgery, incapacity for employment and other treatment. That finding led to liability attaching to the appellant.

The appellant contends that the arbitrator’s decision was not supported by available evidence, took into account irrelevant matters, ignored relevant evidence, failed to provide proper reasons, and attached undue weight to certain of the medical evidence.

The second respondent disputes the grounds of appeal and submits that the arbitrator was entitled to reach the conclusions reached and make the findings, which underpinned the award. In those circumstances the appeal should fail.”

In relation to the assertion that the Arbitrator was not entitled to conclude that Dr Wilding’s medical opinion was “out of step” with other opinion, it is submitted that he was simply preferring one opinion over another, which he was obliged to do in circumstances of conflicting opinion. The Second Respondent submits that the Arbitrator did not fall into error for preferring the views of Dr Weisz to those of Dr Wilding. It observes that Dr Weisz’s history of employment and injury is arguably more detailed that that of Dr Wilding and that Dr Weisz was well placed to express views as to the significance of different injuries. It further submits that it was entirely open to the Arbitrator to make his findings of injury or injuries that were responsible for the surgery and incapacity, because:

“First, the insurer on risk as at 20 May 1999 (CGU) had paid $30,000 of lump sum compensation to the worker in November 2005. Second, the worker’s own evidence, in the form of her statement as part of the ARD, was to the effect that she continued to have significant back pain after May 1999. Third, the opinion of Dr Weisz that the incident in 2000 was the main culpable impact, and from that time onwards, all treatments (including surgery) should logically be considered as a consequence of that event.

In particular the report of Dr Weisz is very clear evidence before the arbitrator as to liability for the surgery, time lost from work on account of that surgery, and other treatment needs. That evidence was before the arbitrator and there was no error in accepting that evidence over the other medical opinion.”

Review and findings

In her statement of 21 February 2008 Ms Waterhouse gives detailed information concerning her injuries and treatment. On 20 May 1999 she states that she was lifting a box of chickens and experienced a sharp pain in her lower back and she lost movement in her legs. She said that she was in agony and had to stop work for an hour. She consulted Dr McKenzie, her then treating doctor, who referred her for x-rays. She returned to work after two days but continued to experience back pain and was required to take painkillers. She states that she continued to experience back pain during the course of her work, but that chiropractic treatment provided temporary relief. On 3 July 2000, Ms Waterhouse states that she was working in the delicatessen at Woolworths, when she lifted 20 kilograms of chicken the pain in her lower back became quite severe and she experienced weakness in her legs. She took time off work and Dr McKenzie referred her for a lumbar spine x-ray, which was undertaken on 8 July 2000. Ms Waterhouse continued to experience pain and in her statement she outlines a detailed history of back pain and treatment.

On 12 January 2003 Ms Waterhouse notified Woolworths that she had experienced an episode of severe pain at home. She sought a “second opinion” from another treatment doctor, Dr Beder, General Practitioner, at Hornsby. Dr Beder referred Ms Waterhouse for an MRI scan. Dr Beder then referred her to Dr Charles New, an Orthopaedic Surgeon. She continued through a range of medical consultations and treatment, until on 30 July 2004 she underwent surgery for the injury to her back. She says that the surgery did not provide enduring improvement and she continues to experience significant back pain. Ms Waterhouse said that she consulted Dr Brian Stephenson, Orthopaedic Surgeon at the request of Woolworths’ insurer (CGU), who reported:

“As a result of injury of 20.5.99 there was no permanent impairment of the neck. There is no permanent loss of use of the right arm above the elbow. There is no permanent loss of use of the left arm at or above the elbow.
There is a 20% permanent [sic] of the back.

There is a 3% loss of the right leg at or above the knee. There is 5% loss of use of the left leg at or above the knee.”

Ms Waterhouse states at [31] of her statement that on 19 October 2005 Woolworths agreed to pay compensation for the impairment of her back and the loss of use of both her right and left legs as a result of the injury she sustained at work in 1999. She states that she was informed that the percentage impairment and loss of use of right and left legs conceded by Woolworths, are consistent with the opinion of Dr Stephenson.

On 10 May 2007 Woolworths informed her that it declined liability for her claim, as she had not suffered injury arising out of or in the course of her employment; that her condition was not related to employment, and that work was not a substantial contributing factor to her injury. In Woolworth’s advice to Ms Waterhouse, reliance was placed on the report of Dr Wilding, dated 14 April 2004, who concluded that an “incident at home” [on 12 January 2003] rather than any work incident, was the cause of her injury.

I note that Ms Waterhouse had experienced the incident of 20 May 1999 at work and had undergone a series of medical investigations, tests and treatment from then, up to and following the “incident at home”. It is agreed between the parties that she suffered some degenerative disease in the relevant area of her back, even before the injury of 20 May 1999. However, she did not exhibit any symptoms up to that point. I agree with the Arbitrator that, “there is no evidence that the degenerative condition would have become symptomatic had it not been for the injuries.” (Arbitrator’s Reasons at [9]).

I note further that Woolworths concede that it is estopped from denying the injury of 30 May 1999 and that the injury of that date led to permanent impairment of Ms Waterhouse’s back and legs (See Arbitrator’s Reasons at [13] and [14]).

According to her statement, supported by reference to her medical history, she experienced “repeated and significant episodes of back pain” while working at Woolworths. She describes the “incident at home” at page 4 of her statement of 21 February 2008:

“7.On the morning of Sunday 12 January 2003 I had a severe episode of pain causing me to fall. Having been on the toilet, I went to stand up and experienced back pain that was in the same place as where I had been experiencing pain since 1999, namely the lower back. The pain was as severe as the worst episode of pain I had experienced in the past, possibly more so. My legs would not support me and so I dragged myself to my bed and lay on my side.

8.The following day, Monday 12 January 2003, I notified Woolworths of my increased pain, and took time of both from my casual night filler job, and also my permanent job at Vivien’s.

9.I sought a second opinion and I went to see Dr Jefferson Beder, a GP in Hunter Street Hornsby.

10. I saw Dr Beder and explained my symptoms.

11. Dr Beder certified me unfit for work, and directed that I have an MRI scan.

12.The scan was performed on 17 January 2003. when I showed the results to Dr Beder on 20 July 2003, he advised me I would need to see an orthopaedic surgeon, and referred me to Dr Charles New.”

Ms Waterhouse goes on to describe the course of investigations and treatment that took place from this point, and developments that occurred, including the further incident of 2 April 2004 and the surgery on her lower back on 30 July 2004. Ms Waterhouse describes the episode of 2 April 2004, as follows:

“18.On 2 April 2004, I was travelling to a management meeting of Vivien’s in North Sydney. As I was descending the stairs on platform one at Hornsby station, I suffered another episode of intense back pain. The pain caused my legs to give way as they had on previous occasions when my back pain became aggravated, and because of this I fell down about five stairs. Although I was suffering intense pain, I was able to get up by myself, holding the stair rail, and got on the train. At the time, my back was very sore, as it always is during such episodes of aggravation. I attended the management meeting, however I was forced to leave to attend my physiotherapist as the pain was intense. Vivien’s paid for my taxi ride to the physiotherapist.

19.I was off work for about two weeks following this aggravation, and I was paid weekly compensation payments by Vivien’s. After this time, the levels of back pain that I experienced returned to the levels they were at before my fall. I continued to experience terrible back pain and had difficulty coping, as I had before.

[From this point the numbering of the paragraphs in Ms Waterhouse’s statement dissembles].

21.On 31 May 2004, I returned to Dr Charles New.

22.On 19 May 2004, I underwent an epidural injection. This did not improve my condition.

20.On consulting several specialists, it was determined that I required significant back surgery. I continued working on and off until the time of my surgery, receiving weekly payments from Vivien’s throughout this period.”

In his report of 1 May 2003, Dr Beder, Ms Waterhouse’s treating doctor, stated that Ms Waterhouse was reviewed at his surgery for a work related injury, initially on 13.1.03. After describing the nature and location of her back pain, Dr Beder stated that an MRI scan taken shortly after this date, revealed disc protrusion of L4/5 centrally and L5/S1 paracentral. He added, “Analgesia was prescribed. Renee was referred to Dr Charles New on 20.1.03. He recommended exercises and physiotherapy.” Dr Beder goes on to describe her condition and pain when reviewed on 17 February 2003, 3 March 2003, 18 March 2003, 8 April 2003, 15 March 2003, and 22 April 2003. He concludes, “With due care and exercises Renee she [sic] make a good recovery. She needs to keep up her exercise regimen and bend correctly. The employment and duties involved were a substantial contributing factor in relation to the injury reported. This subsequent injury may have been exacerbated by the prior injury reported on 3^rd July 2000.”

In his report of 21 June 2004, Dr Beder again provides details of Ms Waterhouse’s injury and pain, and the treatment she had received, after consultations with Dr New, treating orthopaedic spinal surgeon and Dr Michelle Atkinson, also an orthopaedic spinal surgeon, whom she consulted for the purpose of a second opinion. Dr Beder stated, in part:

“Rene [sic] first attended my practice on the 13.1.03. On the previous day she alleged that she had got up from the toilet and her back became extremely painful, having a pinching feeling. She managed to drag herself to the bed. She had been seeing her previous doctor [Dr McKenzie] for a well-documented workers compensation injury dating back to June 2000. While working for Woolworths, she lifted a heavy tub of chicken and suffered from debilitating pain.”

…

Rene was referred to Dr Charles New an orthopaedic spinal surgeon. He suggested initial intensive conservative management on the 3.2.03. This involved core muscle stability exercises and hydrotherapy, complemented by non-steroidal analgesia and possibly trammel and baclofen. He reviewed her again on the 16.3.03 and again on the 3.6.03. He suggested surgery if the pain persisted, either a simple laminotomy or an Lf/S1 instrumental spinal fusion. The last review by Dr New was on the 27.1.04. No surgery was suggested at that stage.
On the 25.8.03 Rene requested a second opinion from the spinal orthopaedic surgeon Dr Michelle Atkinson. She referred Rene to the neurologist Dr Arun Aggarwal, in order to ascertain if there was L5/&/or S1 nerve root compression. He found, via EMG analysis that there was evidence of active and chronic denervation in the muscle supplied by the S1 nerve. Thus there is electrophysiological evidence of bilateral S1 radiculopathies, being worse on the right. The study caused bleed into the right calf muscles resulting in immediate acute pain and an inability to weight bear. He also put Rene on courses of various medications, including Gabepentin, amitryptline (both not tolerated) and trileptal.
Rene also had an unsuccessful epidural steroid injection.
Over the whole period from initial review to the present Rene’s back and leg symptoms have fluctuated. A second MRI scan did not show a compressive lesion irritating the S1 root. Thus Dr Atkinson did not feel that surgery would be of help.
On the 2.4.04 Rene slipped down the stairs at Hornsby railway station, on the way to work at Vivienne’s [sic] Jewellery. She sustained abrasions to both knees.
Rene sought the opinion concerning her back from the neurosurgeon Dr Andrew Kam on the 29.4.04. He feels that Rene is suffering from bilateral S1 radulopathy [sic] most likely due to the L5-S1 disc protrusion. Since the epidural injection was not successful, he suggested that Renew undergoes a microdisectomy and rhyzolysis. This operation is planned in the next few weeks.”

Dr Beder has issued many WorkCover medical certificates in relation to Ms Waterhouse’s back condition/pain over a period of time, including recommendations for management of it.

Ms Waterhouse was treated by Ms Christine Yorston, Physiotherapist, who states amongst other things in her letter of 29 April 2003, “Renee’s MRI of the lumbar spine reveals that she has disc protrusions and dessicated discs at L5-L5 and L5-S1. This is not a common finding, especially in one so young but I feel she may have learn [sic] to manage this problem well.”

The various reports of Dr Michelle Atkinson, treating Orthopaedic Surgeon, confirm Ms Waterhouse’s injury and ongoing pain. While not referring to the cause of Ms Waterhouse’ injury, these reports are evidence of her specific ongoing medical condition and treatment.

Similarly, the various reports or Dr Charles New, Orthopaedic and Spinal Surgeon, describe the management of her injury and pain. However, in his report to Woolworths, dated 2 June 2004, Dr New states, in part:

“At that time [31 March 2004] she was a 24 year old Retail Manager for Woolworths. She alleged that on 12/1/2003 whilst at home she developed debilitating back pain when getting off the toilet. I noted at that time that she had been off work for two weeks, one as annual leave and the other as workers compensation leave, but was in the process of returning to work. This leave came about from a well documented compensable injury in June, 2000 whilst working for Woolworths when she lifted a heavy tub of chicken and suffered debilitating back pain.”

And:
“Renae [sic] is fit for the work that she is currently performing for Viviens and issues relating to Woolworths are currently not relevant as she is not participating in any current work program with this company.

With regard to whether her employment and duties were a substantial contributing factor, the history given to me has been consistent and if this is accurate then there is no reason to believe that this is not a substantial contributing factor.”

Dr New had previously reported, on 11 June 2003 that Ms Waterhouse’s leg pain was intermittent and she had more constant referred pain into her thighs. He went on to say that if this became more regular she may have to consider the possibility of surgery involving the L4/5 and L5/S1 level. He stated, “for predominantly leg pain, a simple laminotomy would be suitable, but should her back and leg pain become very problematic and she is not able to cope, she may require an L4/5 instrumented spinal fusion.”

The history as understood by Dr Andrew Kam is set out in his report of 29 April 2004, to Dr Beder. He states:

“… Ms Waterhouse is a 25 year old lady who has been suffering from lower back symptoms for almost 4 years now. In 2000 she was involved in a lot of heavy lifting activities whilst she was working with Woolworths and had injured her back. This has continued to grumble along chronically and she suffered an acute exacerbation in January 2003. At that time, she was only trying to stand up from a sitting position on a toilet seat and suffered the severe onset of lower back pain. Since then, she has been significantly impaired with lower back pain.”

In his report of 20 March 2005, Dr Weisz states:

“Ms Waterhouse gave a long list of repeated back injuries, mostly related to her work conditions.

Initially her first ever, low back pain was experienced in a fall in March 1999, when her buttocks and left knee were contused. At the time she worked in quite heavy work, even though she was the section Manageress. She had to carry loads repeatedly, bending and lifting them from the ground, stacking on shelves and in the fridge. She started work in 1994, initially only part time, eventually reaching 40 hours a week. Following the first accident in 1999 she had but a brief period off work.

She injured herself again by lifting stacks, ‘a daily load’. Once again [sic] had a few weeks off work with medical attendance, but no x-rays were performed. Apparently she was diagnosed with ‘muscle strain’. At that occasion her ‘back snapped and a sharp pain produced collapse of her legs’.
At some stage in 2002 she changed her duties to selling jewellery, a much lighter duty.

The next event occurred at home on a Sunday, a day off work. She was in a sitting position and when trying to stand up she could not support herself, fell forwards, but not on the ground.
….

Her fifth [sic] accident occurred in April 2004, a fall of 3 or 4 steps, sustaining a strain to her back. She fell on her hands at the time. At that stage she decided that she cannot cope any more and in 2004 she consulted a neurosurgeon as well. By that time, apart from back pain, leg pain was experienced, namely anterior to the knees and also posterior to the arch of the feet. Subsequently, she underwent what seems to be a spinal decompressive procedure, but no exact data is at hand.”

Later, in the same report, Dr Weisz provides the following diagnosis:

“Lumbar disc pathology at two levels, a traumatic aggravation of pre-existent degenerative changes.
As the proper diagnosis was made only in 2003 and the condition is a result of prolonged effect of conditions of work, I assessed her only according to AMA5 guide. It is almost impossible retrospectively to consider the effect of each accident, each having some impact on her condition. No doubt that the January 2003 even at home had only a slight contributing effect. This view is based on the fact that an MRI can on 16.1.03 showed already existent findings.
This would leave the last event, namely the incident in 2000 as the major culpable, with only minimal effects of two previous events, with some 5% responsibility each.”

The history given to Dr Stenning, Practitioner in Musculoskeletal Medicine is substantially the same, in terms of the injury to Ms Waterhouse’s back at work, while employed by Woolworths, in May 1999 and July 2000. He states his professional opinion as:

“From the information I have at hand, I know of no pre-existing conditions. I assumed that the substantial contributing factor to your client’s present condition has been her occupation. I believed that she is also going to see the Neurosurgeon, Dr Aggarwal for further input.”

Dr Stenning assessed Ms Waterhouse’s permanent impairment to her back at 25%, permanent loss of use of left leg at or above the knee including below the knee at 20%, and permanent loss of use of right leg at or above the knee including below the knee at 20%.

In his report dated 14 April 2004, Dr Wilding, Orthopaedic Surgeon states:

“She denied any history of problems with her back prior to her employment with Woolworths. She said that she had been an extremely active sportswoman, playing touch football, swimming, horse riding and snow skiing. She also ‘worked out’ in the gym.

Over the years that she worked at Woolworths she said that she had experienced a sore lower back. She consulted her family doctor, Dr McKenzie in Asquith and was advised that was a ‘muscle strain’. Analgesics were prescribed and she did not take any time off work. She could not recall the dates (26/5/99 and 3/7/99), which you have noted in your referring letter. She recalled that when pallets of stock arrived at Woolworths she had to move the stock and the frequent bending precipitated a pinching sensation in her back and occasionally she fell over because ‘her legs wouldn’t support her’. She said that her legs ‘regained their strength’ but the low back pain would persist for two weeks. She said that she frequently consulted a chiropractor, Mr Alfred Deffert, who practiced in Asquith. Chiropractic manipulation occasionally relieved her symptoms.

On Sunday 12/1/03 she went to the toilet at home. As she began to get off the toilet seat she felt and ‘acute pinching sensation’ in her lower back. She said she experienced sharp pain in her lower back and her legs ‘went’ and she feel forwards but managed to hang onto the bathroom door and did not fall to the ground. She also experienced pain radiating down the anterior and posterior aspect of both thighs to the knees. She called out to her boyfriend who assisted her out of the bathroom and carried her to her bed.”

Dr Wilding then goes on to describe the investigations and treatment that Ms Waterhouse received, after consulting Dr Beder. Dr Wilding states that Ms Waterhouse told him that prior to this incident at home she had regularly participated in hikes, walking up to 14 km. Since 12 January 2003 she said that she had not been able to hike. She told Dr Wilding that bending and lifting aggravated her symptoms. She said that simply putting on her shoes or washing up at a sink or getting in and out of her car aggravated her symptoms. “Walking down stairs ‘jolted her back’ and walking up stairs ‘pulled her back’.”

Dr Wilding reviewed the x-rays of the lumbosacral spine dated 8 July 2000 revealing narrowing of the L5/S1 disc space. He also reviewed the results of both MRI scans of the lumbar spine conducted on 16 January 2003 and 17 March 2003. The impression expressed in the report of the second scan was that when compared with the previous films there was an improvement at the L4/L5 level in that the previously noted herniation had flattened out and there was then only a mild to moderate diffuse disc bulge. The appearances had also reportedly, improved at the L5/S1 level.

Dr Wilding’s opinion is expressed as follows:

“Ms Waterhouse has evidence of degenerative change at L4/5 and L5/S1 as noted on the MRI Scans.
Whilst working at Woolworths she experienced intermittent episodes of low back pain. She was able to cope with her work duties until 12/1/03. This incident at home in my opinion precipitated a lumbar disc protrusion in a degenerate lumbar disc. Up till that point in time she had been managing reasonably well albeit that she experienced intermittent episodes of low back pain. Until 12/1/03 she had been active and had been going on 14 km hikes.
Following the incident on 12/1/03 she has had increasing symptoms in her back and legs as outlined above.
The MRI Scans have confirmed lumbar disc protrusions at L4/5 and L5/S1. On the most recent MRI Scan the protrusions were not as prominent as on the earlier scan.
Examination today revealed a restricted range of thoracolumbar movement and paravertebral muscle guarding. There was also a restricted straight leg raise test and there was a positive stretch test on the right hand side.

Her continuing symptoms are due to a lumbar disc protrusion with nerve root irritation.
In the long term it may not be possible to avoid surgical treatment and she may require lumbar discectomy and fusion from L4 to S1.
Her prognosis is guarded.
When seen today she was unfit for work.
Hopefully her symptoms will settle further with rest and she will be able to return to light duty work as a manager at Viviens the jewellers.
She is permanently unfit for any work, which involves prolonged stooping or bending or heavy lifting. She is unfit for her former work duties at Woolworths.

As far as the symptoms in both upper limbs are concerned I am unable to explain this on an orthopaedic basis. The symptoms commenced in mid 2003 and in my opinion have no relationship to her employment at Woolworths.

As maximal medical improvement has not occurred it is premature to assess permanent impairment.
Whilst her employment at Woolworths may have aggravated the underlying degenerative change in the lumbar spine I do not consider that her employment there was the major contributing factor to the development of the degenerative change in the lumbar spine. It is not possible to state why she has developed the premature degenerative change in the lumbar spine, which was noted on MRI scanning.

As the lumbar disc protrusions appear to have occurred at home on 12/1/03 in what appears to have been a relative [sic] minor incident I do not consider that her employment with Woolworths is responsible for the development of the lumbar spine disc protrusions. It is well recognised that in a susceptible degenerate disc a minor incident can precipitated [sic] a lumbar disc protrusion and in my opinion this is what has occurred in Ms Waterhouse’s case. It should be noted that until 12/1/03 she was able to hike up to 14km regularly.”

What is noteworthy in this matter is that there is little dispute about the basic background and facts. Moreover, even the medical histories as stated differ very little, apart from variations in emphasis, focus and opinion, all drawn from much the same set of investigations and tests. There is essentially little if any dispute about the history of treatment and the reasons for it. Moreover, the “nature and conditions” aspect of the initial dispute is not raised as an issue in this appeal.

Notwithstanding the Appellant’s criticisms of the Arbitrator’s terminology and reasoning, and his “misapplication” of section 9A of the 1987 Act as agreed by Woolworths and Ms Waterhouse, it is my view, upon a review of the evidence, that it was open to the Arbitrator to arrive at the decision that he made in relation to “liability for surgery and the consequent incapacity”, this being the precise issue in contention between the parties.

First, Ms Waterhouse and Woolworths entered into a section 66A (1987 Act) agreement in relation to the workplace injury of 30 May 1999, in which she was paid compensation for a 20% permanent impairment of the back and 5% permanent loss of use of each leg at or above the knee. It is conceded by Woolworths that it is estopped from now denying the workplace injury of 30 May 1999 and that this injury gave rise to permanent impairment of Ms Waterhouse’s back and legs.

Second, it is evident that Ms Waterhouse suffered a further injury at work, in what appears to be similar if not identical circumstances, on 3 July 2000.

Third, it is agreed between the parties that while Ms Waterhouse suffered from degenerative disease “in the relevant area” (Arbitrator’s Reasons at [9]) she manifested no symptoms prior to the incident on 30 May 1999, and no evidence has been put forward to support the conclusion that her degenerative condition would have exhibited symptoms at the relevant times or at any particular time thereafter, but for injuries suffered by her.

Fourth, the incident at home on 12 January 2003 and the incident at Hornsby railway station on 2 April 2004 are different to the incidents that occurred at work. The incident at home involved Ms Waterhouse suffering severe pain while simply elevating herself from a sitting to a standing position. No lifting or extraordinary effort or activity was involved. The incident at Hornsby railway station involved her slipping down some stairs as a result of the onset of an episode of pain. In other words, the pain arising from her existing condition caused her to slip. The reverse is not the case on the evidence: the pain came before the slip.

Fifth, it is true, as Woolworths contends that evidence of a “fall or incident causing trauma” is not necessarily required, in the sense suggested by the Arbitrator. However, the question remains as to whether these episodes can be regarded as “injury” or more accurately, aggravations of injury, or simply periodic and symptomatic manifestations of injury already sustained, or perhaps, both. In this regard, it is established by reason of Ms Waterhouse’s evidence and the treatment that she was undertaking, that her back pain was intermittent and regular after the injury sustained in 1999, and before the incident at home in 2003.

Woolworths contends that the Arbitrator was dismissive of Dr Wilding’s evidence by stating that his opinion was “out of step” with the other relevant medical reports and opinion. It submits that Dr Weisz attributed the major cause of injury to the workplace incident of 3 July 2000, “but attributed a proportion (albeit small) to the other events including the incident at home.” It further submits that Dr Kam provided no opinion as to causation and Dr Stenning, “while having a history of an aggravation in January 2003 has not recorded that event as occurring outside of the workplace”, but then opines, “I assume that the substantial contributing factor to your client’s present condition has been her occupation”.

Woolworths submits that it is therefore not open to the Arbitrator to determine that Dr Wilding’s report was “out of step” with the reports of these doctors, and in any event, his reasoning for so doing is “insufficient”. Notwithstanding the Arbitrator’s use of the phrase “out of step” when describing Dr Wilding’s evidence, his finding must be construed in context. In this regard, I agree with Woolworths (the Second Respondent) that the Arbitrator was simply discussing the evidence and weighing one lot of evidence against another, which is part of the usual process of analysis. Whether he was correct or not, is another matter.

For the sake of completeness, I note that notwithstanding the Arbitrator’s “misapplication” of section 9A of the 1987 Act, as agreed by the parties, it is clear in the context of what he said, that his intention was to find that the nature and conditions of employment did not contribute to work injury that gave rise to the need for the surgery, as opposed to the incidents that he considered, did so.

Dr Wilding’s view that Ms Waterhouse managed reasonably well up to the incident at home on 12 January 2003. He said that she was active and was able to go hiking until that point. However, he does concede that she had suffered from intermittent back pain before that, but “Following the incident on 12/1/03 she has had increasing symptoms in her back and legs as outlined above.” He also said that she was permanently unfit for any work involving prolonged stooping or bending or heavy lifting and was unfit for her former work duties at Woolworths. Nevertheless, Dr Wilding’s opinion is that the lumbar disc protrusions “appear” to have occurred at home on 12 January 2003, in what appears to have been a “relatively minor incident”.

According to Dr Beder, her second treating doctor, Ms Waterhouse had been consulting her previous doctor, Dr McKenzie, “for a well documented workers compensation injury dating back to June 2000. While working for Woolworths, she lifted a heavy tub of chicken and suffered from debilitating pain.” Dr Kam regards the injury at home as “acute exacerbation” of injury already sustained, describing her as a 25 year old lady who has been suffering from lower back symptoms for almost 4 years (see report of 29 April 2004). Dr Weisz, contrary to Dr Wilding, expresses the view, “No doubt that the January 2003 event at home had only a slight contributing effect. This view is based on the fact that an MRI scan on 16.1.03 showed already existent findings.”

Drs Kam and Weisz attribute her injury to the workplace incidents in 1999 and 2000, while Dr Stenning comes to that view, based upon Ms Waterhouse’s medical history. While Dr Wilding gave a history of Ms Waterhouse being quite active up until the incident at home, Dr Kam describes this as, “This [injury to her back] has continued to grumble along chronically and she suffered an acute exacerbation on a toilet seat and suffered the severe onset of lower back pain.”

In relation to the episode at home on 12 January 2003, Dr Wilding’s suggestion that a minor incident can precipitate a lumbar disc protrusion in a susceptible degenerate disc, is noted. That is not inconsistent with the proposition that heavy lifting can, and is probably more likely to, have the same or similar result. While greater detail of treatment following the 12 January 2003 incident is available, there is no doubt that Ms Waterhouse had been receiving treatment of some kind for her injured back and her back pain, progressively from 1999 up to that point. As previously indicated, there were no symptoms before the incident in 1999. Ms Waterhouse relinquished her management position at Woolworths on 15 August 2002 because, “I could no longer cope with my symptoms and back pain…” brought about by her back injury. Whether or not she was able to hike for up to 14 kms from time to time, there is adequate evidence that she suffered back pain on and from 20 May 1999, when she sustained an injury at work while employed by Woolworths. It is evident from Dr Beder’s certificates that Ms Waterhouse was by nature a physically active person who had embarked on a regime of treatment and injury management following the incidents in 1999 and 2000, in order to obtain relief and improve her condition.

Whatever aggravation may have occurred, even in light of the degeneration of her back condition, the evidence and the weight of the evidence suggests on balance, that the Arbitrator’s findings are correct, that is, “that the incidents of 20 May 1999 and or 3 July 2000 were the cause of the need for surgery and other treatment.” I find accordingly.

Woolworths submits that the Arbitrator’s reasons for decision are inadequate and against the evidence and the weight of the evidence. In my view it was open to the Arbitrator, as it is now open to me, to find in favour of Ms Waterhouse, based upon a consideration of the whole of the evidence. The Arbitrator’s Reasons were brief. However, he considered the relevant evidence and preferred some of it rather than other evidence in the matter, where there was conflict (Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355 at [40]).

While and Arbitrator’s reasons for decision must be adequate they are not required to be exhaustive. It is not necessary for example, to refer in detail to the evidence of each and every fact in issue, nor each and every step in the reasoning process. (Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424. In any event, I have arrived at the same conclusion as the Arbitrator, based upon a review of his decision and a consideration of the same body of evidence. (There is no dispute as to the quantum of weekly compensation awarded).

In the circumstances, this ground of appeal fails.

Medical expenses

Woolworths submits that from the outset, it put in issue whether the treatment expenses claimed by Ms Waterhouse were reasonable and necessary expenses pursuant to section 60 of the 1987 Act. “In particular, those expenses challenged were regular and substantial physiotherapy, massage, a gym program, television hire and pilates.”

Woolworths go on to say:

“21.The only medical support for the workers expenses was from Dr Weisz, who opined that the worker would benefit from ‘physical therapy’ to maintain muscular strength. Dr Weisz did not prove an assessment of the number of physical therapy treatments, which would be beneficial.

22.The finding that those treatment expenses in issue were reasonable was not founded upon any medical evidence other than that of Dr Weisz in respect of ‘physical therapy’. In making such a finding with no evidentiary basis, it is the Appellant’s submission that the Arbitrator has committed an error of law.

23.Additionally, there is no basis for finding that a television is a S60 expense.

Woolworths (the Second Respondent) submits.

“In its second ground of appeal the appellant takes issue with a number of the treatment expenses. The second respondent adopted the appellant’s submissions during the course of the arbitration on this issue and, consistent with that position, again adopts the appellant’s position in regard to those expenses. To that extent the second respondent adopts the appellant’s arguments.”

Ms Waterhouse submits that contrary to what Woolworths is now saying, certain concessions were made during the arbitral proceedings, which are evident upon a reading of [32] and [33], where the Arbitrator states:

“32”The Applicant provided a schedule of expenses totalling $19,254.68.
33.The Respondents questioned the reasonable necessity of claims for a television, while in hospital, gym programmes and massage. They did not question the other expenses.”

Ms Waterhouse states that she did not keep a contemporaneous note of the concessions made at the hearing and at the time of making submissions for this appeal, a copy of the transcript was not available.

At pages 29 and 30 of the transcript, I note Woolworths conceded at line 34 that there is some support for physiotherapy. The massage consultations were opposed at line 39. At page 30, lines 3 and 4, the Pilates program is opposed. The television hire in hospital is opposed at lines 9 and 10. There is some support for “swimming at the Aquatic Centre” and for hydrotherapy at lines 11-13. There is no support for the gym fees – see lines 13 and 14. There is a further comment by Counsel at lines 14-16, “I don’t know whether the HIC [inaudible] for past benefits payment of the amount of $2,834.85 is in evidence.”

On what is before me, it seems that the cost of the television while in Hospital, the gymnasium fees, the Pilates classes and the massage consultations were then, and are now, disputed. The physiotherapy was not disputed before the Arbitrator. It was submitted at the hearing that there is no medical evidence to support the Pilates classes, but “In any event, even if there were, one would think that Pilates being a form of learned exercises that after some time you would know what exercises you need to do and be able to do those on an unsupervised basis.” (see page 30, lines 1-8).

The Arbitrator and the parties all acknowledge that Dr Weisz recorded past medical treatment and supported medical treatment and assistance, including physiotherapy, hydrotherapy, medication, epidural or facet joint injections and spinal surgery. At page 7 of his report of 20 March 2005 he says that Ms Waterhouse would benefit from medication, and physical therapy to maintain muscular strength. She points to the following comment in Dr Weisz’s report of 5 December 2007:

“a very precise diagnosis was made in 2002 and further confirmed in 2003 and equally important treatment was continuous, albeit conservative. The last accident at work or related event, was reported to have occurred in 2000, therefore it was interpreted as being the main culpable impact. Accordingly, from that time onwards, all treatments (including an eventual surgical one) should logically be considered as a consequence of that event.”

She also points to a body of WorkCover medical certificates dating from 29 January 2003 in which a variety of activities in a management plan are recommended for Ms Waterhouse. In terms of the disputed items, “muscle strengthening exercises”, “a tens machine”, “gym exercises” are found amongst these recommendations.

I note that in his report of 11 November 2003, Dr Stenning states that Ms Waterhouse would require “quite expensive” surgery, “somewhere between $10,000 and $15,000” and a fair extent of rehabilitation and retraining, including hydrotherapy.

The test in section 60 of the 1987 Act is that if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, any hospital treatment be given, any ambulance service be provided or any occupational rehabilitation service be provided, the worker’s employer is liable to pay the cost of the treatment or service. It must, as stated, be reasonably necessary.

The Arbitrator pointed out that while surgery was carried out, it has not resolved Ms Waterhouse’s problems, “but has assisted in their management.” (see [34] of his Reasons). The Arbitrator takes into account Dr Weisz’s report, and says:

“He is the only doctor to comment. My common sense tells me that if the Applicant is to remain as healthy as possible, having suffered the trauma to the disc and spinal column, that the maintenance of healthy muscles is a good start. In that respect massage and gym attendance seem to me to be reasonably necessary treatment.”

He also says that a television set in hospital was “reasonable occupational therapy for a person who is otherwise active and has to spend long periods in bed immobile.”

In Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233 (‘Bartolo’), Burke J, specified a number of factors that are relevant in determining whether treatment is reasonably necessary. These are: the appropriateness of the treatment; available alternatives; relative cost; potential effectiveness; and the usualness of the treatment.

There was little discussion as to the section 60 claim in the proceedings before the Arbitrator. It seems to me, having regard to the evidence, the problems that she has had with her back, the need for surgery, the need to change her job to minimise the impact on her back, the program of activities that Ms Waterhouse underwent, and the treatment she was required to undergo, an award in her favour was appropriate.

The objection to the Pilates program was to a great extent, the ongoing nature of it. However, the amount claimed relates to a period from September 2004 to January 2006. No objection was detailed as to the appropriateness of the activity in the range of activities undertaken by Ms Waterhouse, the relative cost, the potential effectiveness, and the usualness of it.

Further, at $27, the provision of a television set for the two days when Ms Waterhouse was in Hospital would appear to fall within the range of factors including reasonable cost, outlined by Burke J in Bartolo. The gymnasium fees and the cost of the massage are clearly within the range of the program specified from time to time by Dr Beder, and recommended in Dr Weisz’s report.

In my view, the decision of the Arbitrator, although once again expressed in very brief terms, is correct. Following a review of the evidence, I find accordingly.

In the circumstances, this ground of appeal fails.

DECISION

The appeal is not successful. The Arbitrator’s decision dated 15 July 2008 is confirmed.

COSTS

Woolworths, the Appellant is to pay the costs of the appeal of Ms Waterhouse, the First Respondent and Woolworths, the Second Respondent.

Gary Byron
Deputy President
4 November 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE