Yogarajah v Ventia Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yogarajah v Ventia Services Pty Ltd [2023] NSWPIC 431
APPLICANT:	Theresa Yogarajah
RESPONDENT:	Ventia Services Pty Limited
MEMBER:	Michael Moore
DATE OF DECISION:	28 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant claimed weekly compensation and section 60 medical expenses for an alleged injury to her back in a work fall; her statements claimed no or only minor back problems pre-fall; the medical evidence established a long history of very significant back problems over many years with the applicant suffering significant impairments pre-fall; the applicant’s first statement and the initial treating medical records made no mention of back or leg pain being experienced by the applicant at the time of the fall however a subsequent statement and histories to doctors claimed an immediate onset of back pain at the time of the fall with the intensity of the pain eventually being described as being so severe that she was unable to mobilise following the fall; applicant’s evidence and histories to doctors found to be unreliable; the medical evidence of the applicant found to be based on incorrect histories of little probative value or so illogical or ill-considered as to be of little probative value; Held – no actual persuasion that the applicant suffered any injury to her lumbar spine in the nature of a personal injury; Drca v Kab Sealing Systems Pty Ltd applied; no injury in the nature of a disease contracted in the course of employment to which the employment was the main contributing factor; no injury in the nature of an aggravation acceleration exacerbation or deterioration of a disease; awards for the respondent on the claims for weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. An award for the respondent on the claim for weekly compensation pursuant to s 37 of the Workers Compensation Act 1987. 2. An award for the respondent on the claim for payment of medical hospital and related expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant Theresa Yogarajah is 64 years of age and was employed by the respondent as a cleaner at Winston Hills Primary School.
The applicant was working for the named respondent at the date of her injury but it appears that by way of employment background she had been working for companies related to the named respondent since around 2005. She initially worked at Hilltop Public School at Merrylands, then Toongabbie Public School and from 2010 at Winston Hills Public School.
In a statement dated 20 September 2021 (“the applicant’s first statement”) attached to the Application to Resolve a Dispute (“the application) the applicant described her duties in the following terms:
“My duties include cleaning the staff room and classrooms on one side of the school, taking the rubbish out and cleaning the toilets. This includes vacuuming, mopping, dusting and empty bins, which are heavy jobs. Also, in the middle of the day, I take the big bins around the yard and empty them. I also do the blowing job outside on the paths.
This is very hard work that I have been doing for 15-years.”[1]
[1] Application p3.
On 26 February 2021 the applicant was at work performing her usual duties.
At approximately 8.00am on that day the applicant was emptying a plastic bag filled with a small amount of rubbish into a larger bin outside a classroom when she slipped on a kerb or a concrete step and fell to the ground.
It seems that the applicant fell on her left side and hit her left hip and leg.
The applicant’s left leg began to swell below the knee and she was taken by her husband (who also worked as a cleaner at the same school) to her general practitioners’ practice and was seen by Dr Marino Esawaraj Bastiampillai and X-rays were requested of the applicant’s left elbow and left knee[2] ( I note that the applicant in the applicant’s first statement incorrectly referred to seeing Dr Jeyachandran on the day of the fall).
[2] Application p97.
The applicant was subsequently seen by Dr Jeyachandran and x-rays were taken of the chest and left ribs.[3]
[3] Application p97.
In her statement the applicant states that at the time of her X-ray of her left elbow and left knee she was not noticing any pain in her hip (presumably the left hip) nor in her ribs.[4]
[4] Application p5.
The applicant then underwent physiotherapy and was treated for her left leg from the hip down.
The applicant alleged in the applicant’s first statement that she continues to suffer pain “all over my hip and ribs”.[5]
[5] Application p5.
The applicant was referred to a pain specialist Dr Alister Ramachandran who administered some injections to reduce the applicant’s pain.
The applicant states in the applicant’s first statement that the pain in her hip and ribs returned despite some initial improvement following her treatments with Dr Ramachandran.[6]
[6] Application p5.
The applicant subsequently came under the care of Dr Brian Hsu spinal surgeon and was seen by Dr Hsu for the first time on or about 19 August 2021 and Dr Hsu’s report of
[7] Application p42.
2 September 2021 records that she gave a history of experiencing significant back pain and increasing leg pain.[7] There is no mention in the report of Dr Hsu dated 2 September 2021 of hip and rib pain.
Dr Hsu diagnosed the applicant as suffering from “severe spinal canal stenoses over multiple levels along with spondylolisthesis at those levels as well”.[8]
[8] Application p41.
Dr Hsu recommended that the applicant undergo spinal surgery to deal with her neural compression.
The surgery recommended by Dr Hsu involves decompression and fusion of the applicant’s spine from L2 to the pelvis.
Following her fall liability for payment of workers' compensation benefits appears to have been accepted by the respondent up until 5 November 2021 when the insurer of the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability on the following grounds:
a. the applicant did not suffer an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
b. the applicant’s employment was not a substantial contributing factor to the applicant’s alleged injury as required by s 9 of the 1987 Act, and
c. the applicant was not entitled to any weekly benefits under s 33 of the 1987 Act as any incapacity was not as a result of the alleged injury on 21 February 2021.[9]
[9] Application pp24-28.
The applicant sought a review of the decision to decline her claim by way of a written request dated 17 December 2021 relying (inter alia) upon a report of Dr P Endrey-Walder dated
6 December 2021.
By a Notice under s 287A of the 1998 Act dated 21 December 2021 the respondent maintained its denial of liability for the following reasons:
“1. You have not suffered an injury within the meaning of Section 4 of the 1987 Act There is evidence of pathology and treatment that clearly predates the incident reported 26th February 2021 and accordingly the incident described is not responsible for your current presentation
2. You are not entitled to any weekly benefits under section 33 of the 1987 Act for any period of incapacity as a result of your injury. You have not suffered incapacity as a result of a workplace injury and therefore no weekly benefits are payable to you. Dr Miniter state “there are no features of her investigations to suggest that the fall, which is said to have occurred in February, has in any way contributed to her current presentation.
3. You do not require and or not entitled to treatment or necessary expenses under section 60 of the 1987 Act. That there is no further treatment recommended as a result of the fall reported 26th February 20201. Dr Miniter states “I would strongly advice against neurosurgical opinion and any suggestion of spinal surgery, which I believe would have a very poor outcome.
4. We refer to the section 78 notices previously issued in relation to your lower back, left knee, arm and chest wall conditions. This section 287A notice should be read in conjunction with the previous notice.”[10]
[10] Reply p 3.
The applicant subsequently brought proceedings in the Personal Injury Commission (Commission) for payment of workers' compensation benefits in Matter Number: W2235-22 and Matter Number: W211-23. Both sets of proceedings were discontinued by the applicant.
The present proceedings were commenced by the filing of the application on 20 April 2023.
At the preliminary teleconference I indicated that the pleading of the Injury Details in the application were confusing and did not seem to properly reflect the claim that was revealed in the evidence the applicant was seeking to rely upon.
A direction was made that an amended application to resolve a dispute (the amended application) be filed on or before 5.00pm on 12 June 2023 identifying the following:
(a) whether the applicant alleges any injury under s 4(a) of the 1987 Act;
(b) whether the applicant alleges any injury under s 4(b) of the 1987 Act;
(c) if an injury is alleged under s 4(b) of the 1987 Act whether the injury is alleged under s 4(b)(i) or s 4(b)(ii) or both;
(d) if an injury is alleged under s 4(b) of the 1987 Act the disease it is alleged that was sustained, aggravated, accelerated, exacerbated or deteriorated, and
(e) what part or parts of the applicant’s body that were injured.
At the conciliation/arbitration hearing I was advised that the amended application had been filed with the timeframe ordered and counsel for the respondent confirmed that the amended application had been received by the respondent’s representatives.
Unfortunately the filed document was not on the Commission's electronic platform but a hard copy of the document was provided to me by the applicant’s representative.
No objection was raised by the respondent to the proposed amendments.
The case therefore proceeded on the basis of the amended application being admitted in the proceedings.
The amended application was subsequently re-filed with the Commission pursuant to a direction to complete the file.
No annexures were attached to the amended application as the evidence in the case remained as attached to the application and accordingly references to the evidence will refer to the attachments to the application.
No amendment to the respondent’s reply or the notices issued under ss 78 and 287A of the 1998 Act was required by the amended application.
The amended application sought an award of weekly benefits compensation and payment of medical, hospital and related expenses as a consequence of alleged injuries to the applicant’s lumbar spine, hips and left elbow.
The pleading of injury in the amended application was of a disease injury under ss 4(b)(i) and 4(b)(ii) of the 1987 Act with a deemed date of injury of 26 February 2021 although it was unclear as to whether the applicant was also alleging a personal injury under s 4(a) of the 1987 Act.
At the arbitration hearing Mr Bill Carney of counsel who appeared for the applicant clarified that the allegation was one of a disease injury whereby there was an aggravation of a disease in the fall on 26 February 2021 and/or the disease was contracted in the course of the applicant’s employment or the employment aggravated accelerated exacerbated or deteriorated as a result of the nature of the duties performed by the applicant in the course of her employment and that the employment was the main contributing factor to the applicant contracting the disease or the aggravation, acceleration, exacerbation or deterioration of the disease. This clarification seemed to leave open a claim of a personal injury under s 4(a) of the 1987 Act being a fall that aggravated an existing degenerative disease.
Given the pleading in the application alleged injury to the applicant’s lumbar spine, hips and left elbow I asked Mr Carney whether any incapacity for work was alleged as a consequence of the pleaded injuries to the hips and left elbow in addition to the allegation of injury to the lumbar spine and I was advised that the only (emphasis added) injury relied upon in relation to incapacity was the injury to the applicant’s back.
Mr Tom Grimes of counsel who appeared for the respondent made clear that even if causation of the applicant’s claimed injury was found in favour of the applicant the level of the applicant’s current work capacity remained in dispute.

Issues for determination

In line with the clarifications of the applicant’s amended application provided by Mr Carney and his limitation of the claim to the allegation of injury to the lumbar spine it is my view that the following matters remain in dispute:
(a)    whether the applicant suffered a personal injury to her lumbar spine arising out of or in the course of her employment being a single incident that aggravated an existing disease namely the fall causing injury to her lumbar spine that was already affected by a disease (s 4(a) of the 1987 Act);
(b)    whether the applicant’s employment was a substantial contributing factor to such injury (s 9A of the 1987 Act);
(c)    whether the applicant suffered an injury to her back, specifically to the lumbar spine, which was a disease contracted in the course of her employment to which the employment was the main contributing factor to contracting the disease
(s 4(b)(i) of the 1987 Act);
(d)    whether the applicant suffered an injury to her lumbar spine on 26 February 2021 which involved an aggravation acceleration exacerbation or deterioration of a disease where that injury could be regarded as the main contributing factor to such aggravation acceleration exacerbation or deterioration (s 4(b)(ii) of the 1987 Act);
(e)    whether the applicant suffered an injury to her lumbar spine as a result of the nature of the duties performed in the course of her employment causing an aggravation acceleration exacerbation or deterioration of the disease and where the employment was the main contributing factor to such aggravation acceleration exacerbation or deterioration of the disease (section 4(b)(ii) of the 1987 Act);
(f)    whether the applicant suffered any incapacity for employment as a result of any injury received in or arising out of or in the course of her employment (s 33 of the 1987 Act), and
(g)    whether the proposed medical treatment expenses sought in the amended application are reasonably necessary and result from the pleaded injury in the amended application (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Amended application;
(d)    Application to admit late documents dated 30 June 2023 filed by the applicant and attached documents (AALD 1), and
(e)    Application to admit late documents dated 3 July 2023 filed by the respondent and attached documents (AALD 2).
In relation to AALD 2 I note that at the time of the conciliation / arbitration hearing it became apparent that AALD 2 was not showing up on the Commission’s electronic file despite same having been filed with the Commission.
A hard copy of AALD 2 was made available to me at the hearing by the applicant’s solicitor who had received same from the respondent when filed.
No objection was raised to any of the late documents by either party and having reviewed same it was my view that the documents were relevant and it was in the interests of justice that same be, and were, admitted into evidence.
A subsequent search located AALD 2 in the Commission’s electronic records.

Oral evidence

No oral evidence was given at the arbitration hearing.

FINDINGS AND REASONS

Counsel’s submissions

Mr Carney submitted on behalf of the applicant that this was a disease case where the fall on 26 February 2021 and the nature of the applicant’s duties had either caused or aggravated, accelerated, exacerbated or caused deterioration of established degenerative disease in the applicant’s back.
Mr Carney submitted that the starting point in understanding the causation of the applicant’s alleged injury was the applicant’s statement in relation to her duties commencing at paragraph 11 of her statement in the application through to paragraph 19.[11]
[11] Application pp2-3.
Mr Carney argued that it was clear that the duties were heavy and included bending and twisting activities and argued that Dr Hsu accepted that there was a nexus between those heavy duties over time and the claimed injury to the applicant’s back.
In relation to the events of 26 February 2021 Mr Carney noted that there was no mention of an injury to or symptoms in the back in the applicant’s general practitioner’s records until at least 17 March 2021 when there was a reference in the treating general practitioner’s notes of pain in the left lateral buttock.
It is my understanding that Mr Carney was submitting that the left lateral buttock pain was related to the applicant’s back, presumably as being radiation of pain from the sciatic nerve. I note that there is no medical evidence confirming that was the cause of the applicant’s buttock pain at that time.
Mr Carney noted that immediately prior to the attendance with the general practitioner the applicant had been seen by Tomoki Ohashi physiotherapist where she had given a history of no improvement in her pain in the left lateral shin region. The physiotherapist in a report to
[12] Application p48.
Dr K Jeyachandran dated 16 March 2021 had advised that the physiotherapist suspected “the pain is coming from both the low back/hip region and locally at the L lateral shin”.[12]
Mr Carney noted in his submissions that following the physiotherapist’s report of
16 March 2021 an MRI investigation was arranged as recommended in the report with the MRI occurring on 30 April 2021 reported 4 May 2021.
Mr Carney noted that the MRI was of the applicant’s lumbosacral spine and referenced its findings as recorded in the general practitioner’s notes reproduced in the application.[13]
[13] Application pp93-94.
Mr Carney did not shy away from the fact that there was considerable evidence in the case evidencing that the applicant had been suffering from back complaints and receiving treatment for back problems for many years prior to the events of 26 February 2021 and went through a number of the entries in the general practitioner’s notes and reports of
Dr Jason Balgi which were reproduced in AALD2.
Mr Carney noted that during that long period of treatment for back problems the applicant had been able to work and continued to work for the respondent and the predecessor organizations holding the cleaning contracts at the schools where she worked.
As part of his review of the clinical notes and medical records and reports Mr Carney argued that while the applicant had complained of right leg pain to her general practitioner only two weeks prior to her fall on 26 February 2021 her complaint of left leg pain only came on after the fall.
Mr Carney submitted that Dr Brian Hsu the applicant’s treating spinal surgeon supported a nexus between the applicant’s spinal canal stenosis and the aggravation of that condition by both the fall on 26 February 2021 and the nature of the duties performed by the applicant in the course of her employment as a cleaner.

Mr Carney directed my attention to the reports of Dr Hsu appearing in the application from pages 41 to 46 and specifically submitted that on a proper reading of Dr Hsu reports he was saying that he was not aware of any pre-existing back problems other than those arising from her work duties and fall on 26 February 2021. For reasons outlined later I do not accept that is a valid characterisation of Dr Hsu’s reports.
Mr Carney submitted that the views of Dr Hsu were supported by the evidence of
[14] Application pp32-40.
Dr P Endrey-Walder dated 6 December 2021.[14]
Mr Carney argued that Dr Endrey-Walder accepted that there was a direct connection between the fall on 26 February 2021 and the severe back pain, pain at the left elbow and left hip.
Mr Carney appeared to suggest that Dr Endrey- Walder had expressed the view in his report that the applicant had aggravated pre-existing, established arthritis in the applicant’s back.
In summary Mr Carney set out an argument that his client had well established degenerative disease in the back that had been aggravated by her work duties and had finally been aggravated by the event of the fall on 26 February 2021 and either the event of 26 February 2021 or the combination of both the fall and the work duties being aggravating events had given rise to the claim for weekly compensation and the need for the surgical intervention suggested by Dr Hsu.
Mr Grimes took issue with the case as submitted by Mr Carney.
Mr Grimes firstly submitted that the case had been pleaded in the amended application as having two alternative causes of injury to the lumbar spine.
The first allegation was of a frank incident being the fall on 26 February 2021 causing injury to the lumbar spine, hips and left elbow.
The second allegation was that the applicant had as a result of her strenuous duties as a cleaner sustained an injury in the nature of a disease or the aggravation, acceleration, exacerbation or deterioration of a disease under either s 4(b)(i) or s 4(b)(ii) of the 1987 Act.
Mr Grimes noted that it seemed to him that the case had initially proceeded on the basis that the applicant had suffered a personal injury in the fall but that the case had been re-engineered into an allegation of injury essentially in the nature of the aggravation of a disease.
Mr Grimes dealt with each of the alternative allegations of injury separately in his submissions commencing with the allegation of a frank incident causing injury to the applicant’s back.
In relation to the alleged injury to the applicant’s back as a consequence of the fall on
26 February 2021 Mr Grimes commenced his submissions by reference to the applicant’s first statement dated 20 September 2021.
Mr Grimes noted that in relation to the description of the events of injury the applicant described falling forward and landing on her left side hitting her hips and ribs. She also described swelling below her left knee.
Mr Grimes noted however that in that description of the incident and the injuries there was no mention of an injury to the back.
Mr Grimes noted further that the applicant gave a history of seeing her general practitioner after the incident and being sent for X-rays for the left leg and knee.
He also noted that as at the date of the statement the applicant described her pain as being “all over my hip and ribs” but did not describe back pain and Mr Grimes commented that there is no explanation in the statement as to when back pain came on.
Mr Grimes pointed out that at paragraph 50 of the applicant’s first statement the applicant stated that she did not have any pre-existing injury which Mr Grimes submitted was clearly incorrect with the applicant having received treatment for back problems for at least 12 years prior to the pleaded incident with the last such consultation being one with her general practitioner only some days before the incident on 26 February 2021.
Mr Grimes argued that the applicant’s first statement could not be accepted as providing evidence of an injury to her back in the fall on 26 February 2021.
Mr Grimes then pointed to the incident report attached to the application.[15]
[15] Application pp20-23.
The incident report was prepared by a Sergio Saavedra and included a diagram that had been completed by the author of the report showing the injured areas of the body of the applicant. The identified areas were the left elbow and lower left leg. Further the incident report also recorded the applicant as having injured her left down leg [sic] and her left arm.[16]
[16] Application p 21.
Mr Grimes noted that there was no mention in that incident report of an injury to the back.
Mr Grimes then noted that when the applicant was seen by one of her general practitioners on 26 February 2021 the doctor recorded the following history:
“History of accidental fall in the work site of the School today at 8AM while cleaning. Complin(sic) of pain in the left knee and left elbow and wrist pain. Refused to go to hospital.? Soft tissue injury. No other injury noticed.”[17]
[17] Application p97.
Mr Grimes then noted that the doctor referred the applicant for X-ray investigations of the left elbow and left knee.
Mr Grimes’s submissions then noted that while the applicant was seen by a general practitioner on 5 March 2021 and 11 March 2021 there was no mention of back pain recorded in the notes of those consultations.[18]
[18] Application p97.
Further Mr Grimes noted that the initial SIRA certificate of capacity provided by
[19] Application p75.
Dr K Jeyachandran dated 5 March 2021 described the alleged work related injury/disease in the following terms “Left knee and left elbow pain and left wrist pain?soft tissue injury&left lower posterior chest lower leg pain”[19] but did not contain any reference to back injury or pain.
Mr Grimes also pointed out that a report of an X-ray examination on 11 March 2021 from
[20] Application p71.
Dr James Kelly recorded a history of “Post fall complaint of pain left posterior chest and left hip and right pelvis region for more than 2 weeks”[20] but did not contain any reference to back pain or injury.
Dealing with the phyisotherapist’s reports in the application Mr Grimes noted that in a report to Dr Keyachandran dated 11 March 2021 the physiotherapist Tomoki Ohashi had received a report from the applicant of “L hip pain, with pain running postero-laterally down the thigh into the calf”[21] but contained no mention of back pain.
[21] Application p46.
A report from the same physiotherapist dated 16 March 2021 was noted by Mr Grimes as recording “no significant improvements in the L lateral shin region following her fall” but not referring to back pain.
Mr Grimes submitted that given the applicant’s history of pain coming from the back as revealed in the medical records since 2009 and having been reported and recorded over that period the “glaring” reason why such pain is not recorded in the medical notes and reports at the time of the applicant’s fall and subsequently is that the fall did not cause back pain.
Mr Grimes noted that even after the applicant was referred for an MRI investigation in April 2021 the referral referred to “left lateral shin and left buttock pain”[22] not back pain and that the general practitioner’s notes of a consultation on 28 April 2021 still recorded a history of “increasing pain in left lower ribs, left buttock post leg and left lower lat legs”[23] but did not mention back pain.
[22] Application p72.
[23] Application p94.
The reason for the detailed submissions about the applicant’s first statement and the history given by the applicant in the course of her treatment following the fall on 26 February 2021 is that in dealing with the applicant’s medical evidence Mr Grimes submitted that the medical opinions on causation relied by the applicant were all based on an acceptance of the applicant having the onset of symptoms in her back immediately following her fall which is not the history set out in the applicant’s first statement nor is it the history in the contemporaneous treating medical records.
Mr Grimes noted that Dr Alister Ramachandran the pain specialist who treated the applicant provided a report dated 21 June 2021 which recorded that the history provided to him at the time of his consultation was:
“she tripped and fell onto her left side resulting in a sudden onset of left leg pain and low back pain. Based on her history it seems the fall was the main precipitating factor for her leg and back pain.”[24]
[24] Application p54.
Mr Grimes also noted that the doctor recorded that the applicant stated that prior to the fall she had mild back pain.
Mr Grimes submitted that this was clearly incorrect and that the opinion was based on an incorrect history and accordingly was of little weight and could not be relied upon citing the ratio of the court in Paric v John Holland Constructions Pty Ltd.[25]
[25] [1984] 2 NSWLR 505.
Dealing with the medical reports of Dr Hsu the treating spinal surgeon Mr Grimes first referred to the report dated 2 September 2021[26] sent to the applicant’s pain specialist
[26] Application pp41-43.
Dr Alister Ramachandran where the history of the “present illness” was of a fall onto concrete experiencing significant back pain and increasing leg pain and numbness.
Mr Grimes then noted that Dr Hsu had been asked to provide a report answering questions posed by the applicant’s solicitor where he was asked to comment on the applicant’s condition prior to the fall on 26 February 2021.
Mr Grimes noted the response to the question “Could you comment on the workers condition prior to the accident on 26 February 2021?” commenced “I am unaware of any pre-existing conditions prior to the fall.” [27]
[27] Application p45(a).
Mr Grimes also noted the response to the question “Would you please confirm whether the worker was suffering from a significant spinal injury prior to her fall on 26 February 2021” was “I do not believe so”.[28]
[28] Application p45(a).
Mr Grimes also drew attention to the response to a further question as to whether “the need for spinal surgery resulted from the injuries sustained in the accident or due to pre-existing factors” which was “I am unaware of any pre-existing conditions prior to the fall”.[29]
[29] Application p45(a).
The submission made by Mr Grimes in relation to that report is that it was so lacking in an accurate history of the applicant’s injury and pre-existing conditions that it should be completely disregarded.
Mr Grimes then dealt with a further report from Dr Hsu dated 9 January 2023.[30]
[30] Application pp45(c) - 45 (d).
That report of Dr Hsu is a response by the doctor to a series of questions posed by the applicant’s solicitor in a letter to the doctor providing inter alia a full copy of the complete medical records of the applicant’s general practitioner.[31]
[31] Application pp31(a) - 31(b).
Mr Grimes noted that the doctor provided a response indicating that he had seen the enclosed documents but repeatedly noted that “I am unaware of any pre-existing conditions prior to the fall”.
Mr Grimes submitted that the doctor could not have considered the documents and then produce a response that the doctor was unaware of any pre-existing conditions and submitted that accordingly the report had little or no weight.
Dealing with the report of Dr P Endrey-Walder dated 6 December 2021[32] Mr Grimes argued that the report was again based on an incorrect history with the applicant telling him in her history of the incident that when in the cleaner’s room immediately following the fall “my leg (left) was swelling (indicating the lateral calf), I had a very sore back, I had pain in my left elbow and forearm, but this only small pain”.[33] That version of events is in Mr Grimes submission not supported by the evidence.
[32] Application pp32-39.
[33] Application p33.
Mr Grimes further submitted that while the report indicates that Dr Endrey-Walder had considered a range of radiological investigations taken post the incident of 26 February 2021 he had not given any detailed consideration to the earlier investigations.
In relation to Dr Endrey-Walder’s opinion Mr Grimes submitted that the opinion was based on the fall having resulted in “chronic, severe, in fact quite physically debilitating, lower back pain, pain at the lateral aspect of the left elbow and at the greater trochanteric bursa of the left femur”[34] which was not the correct history. Mr Grimes also noted the comment that there was “a direct connection between your client’s severe back pain, pain at her left elbow, left hip and the fall described”[35] which he submitted was not based on a correct history.
[34] Application p37.
[35] Application p38.
Mr Grimes submitted that the opinion of Associate Professor Paul Miniter, the independent medical examiner appointed by the respondent, as set out in his report dated 21 October 2021[36] should be accepted in relation to the claimed nexus between the fall on the
[36] Application pp57-66.
26 February 2021 and the alleged injury to the applicant’s back/lumbar spine.
Essentially Mr Grimes’s submission in relation to A/Prof Miniter’s report and its weight was that as A/Prof Miniter was the only doctor who had properly considered at least in part the long history of past back problems and had the correct history that there was no immediate onset of back pain that opinion was the only one in evidence that had a proper basis for acceptance and as such should be accepted.
Finally in relation to the allegation of a frank injury to the lumbar spine on 26 February 2021 Mr Grimes submitted that the report of Dr Cristina Ciucanu again was one that contained an incorrect history of chronic back pain immediately following the incident of 26 February 2021 and again should be regarded as having little evidentiary weight in relation to a decision on causation.
In relation to the alternative allegation that the applicant suffered an injury due to the strenuous duties and the nature and conditions of her employment in the nature of a disease or the aggravation, acceleration, exacerbation or deterioration of a disease Mr Grimes firstly pointed out that there is evidence that establishes the applicant had significant problems with her back before she started work for the respondent in 2011 with the general practitioner’s notes including a report from A/Prof (formerly Dr) Siri Kannangara dated 20 May 2009 who had seen the applicant at which time she was complaining about right sided sciatica along the S1 distribution.[37]
[37] AALD2 p1.
In a subsequent report dated 3 June 2009 A/Prof Kannangara stated that as far as the spine was concerned “I am not keen on surgery as yet. I will keep her going as long as possible”.[38] At that time walking was a major problem and there was no comment about work being associated with the applicant’s back symptoms. Mr Grimes submitted that there was clear evidence of significant problems in the applicant’s spine prior to commencing work with the respondent and that there was no evidence at that time that work was a cause of or aggravation of the back condition.
[38] AALD 2 p2.
Mr Grimes noted that the allegation of a disease type injury had come late in the proceedings and did not reflect the evidence in the applicant’s first statement which indicated that before the fall she did not have a pre-existing injury and that she was working with full capacity prior to the fall.[39] He noted that nowhere in that statement did the applicant assert that she had suffered an aggravation of her back condition as a result of the nature and conditions of her employment.
[39] Application p6.
Mr Grimes then went through the medical records in evidence noting that there were numerous attendances for back problems between 2009, up to and immediately prior to the applicant’s fall on 26 February 2021 where the applicant had received treatment and noted that throughout that whole period of some 12 years there was no reference to work as a cause of any need for treatment.
Mr Grimes pointed out that the applicant saw her general practitioner on 8 February 2021 complaining of increasing right leg pain with back pain for one week. He further noted that the applicant was seen again on 16 February 2021 complaining of increasing pain in the right leg again without any reference to work duties as a cause of the problem.
Mr Grimes submitted that while Dr Hsu in his report of 6 September 2022[40] did suggest that applicant’s employment as a cleaner was a significant contributing factor to her injury that opinion did not address the contents of the records evidencing a significant history of back problems and did not in any event apply the correct test of causation under s 4(b). The opinion also did not appear to be consistent with his view that the applicant did not suffer from a significant spinal injury prior to her fall.
[40] Application pp45(a) – 45(b).
Mr Grimes also noted that the subsequent supplementary report from Dr Hsu addressing questions posed by the applicant’s solicitor and dated 9 January 2023[41] again failed to apply the correct test of a disease or aggravation of a disease and again failed to properly consider the material evidencing the long history of back problems and on those bases it could not be persuasive.
[41] Application pp45(c) -45(d).
Addressing Dr Endrey-Walder’s report of 6 December 2021 Mr Grimes submitted that report did not support the claim of a disease type injury as a consequence of nature and conditions of employment but rather that the fall had caused the pain experienced by the applicant even though there was significant pre-existent pathology.
At the time Mr Grimes concluded his submissions and before commencing his submissions in reply I advised Mr Carney that I was extremely concerned about the gap in the history between the date of the fall on 26 February 2021 and the onset of any back pain or other related symptoms.
In reply to Mr Grimes submissions Mr Carney drew attention to the reasoning of Dr Endrey-Walder and Dr Ramachandran that the applicant had been able to perform her full duties up until her fall and had not been able to return to work due to significant lower limb neuropathic pain and accordingly the fall must have aggravated the pre-existing degenerative condition of the applicant’s spine.
I have set out in some detail the submissions of each counsel in part because of the different approaches taken to matter.
As I have noted earlier Mr Carney basically commenced his submissions arguing that the injury was in the nature of an aggravation of a disease caused by the fall on 26 February 2021 and also aggravated by the nature of the duties performed as a cleaner.
I feel however that part of Mr Carney’s submissions, particularly those dealing with the medical reports of Dr Endrey-Walder and Dr Ramachandran could be regarded as supporting an argument that the fall on the 21 February 2021 should be regarded as an injury that was a single event, being the fall, that aggravated a disease and would be properly regarded as an injury that satisfies the section 4(a) definition of personal injury in the 1987 Act as decided by the Court of Appeal in Rail Services Australia v Dimovski.[42]
[42] [2004] 25 NSWCA 267.
Mr Grimes submissions were clearer in that aspect as they dealt both with the allegation of personal injury on 26 February 2021 and injury in the nature of a disease or aggravation of a disease as a consequence of the nature and conditions of the applicant’s work duties.
At first glance this case looks like a fairly straight-forward argument for the applicant.
A suggested short summary of the case would be that here is a worker with a good work history, doing moderately heavy work as a cleaner over many years, who has pre-existing back problems aggravated, accelerated and exacerbated by those duties and who also had a fall causing an immediate worsening of symptoms which have not resolved and who has been left with little or no current work capacity.
Unfortunately the evidence in the case is not nearly so straight-forward and probative.

The applicant of course bears the onus of establishing on the balance of probabilities that the applicant suffered either;
(a)    a personal injury arising out of or in the course of employment [43] to which the employment was a substantial contributing factor,[44] or
(b)    an injury being a disease that was contracted by the applicant in the course of her employment where the employment was the main contributing factor to contracting the disease,[45]or
(c)    an injury being the aggravation, acceleration, exacerbation or deterioration in the applicant’s employment of a disease where the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.[46]
[43] See s 4(a) of the 1987 Act.
[44] See s 9A of the 1987 Act.
[45] See s 4(b)(i) of the 1987 Act.
[46] See s 4(b)(ii) of the 1987 Act.
I note that the test of main contributing factor referred to ss 4(b)(i) and 4(b)(ii) of the 1987 Act is a more stringent one that the test of substantial contributing factor referred to in s 9A of the 1987 Act.[47]
[47] AV v AW [2020] NSWWCCPD 9.

Did the applicant suffer a personal injury within the meaning of s 4(a) of the 1987 Act?

Both Mr Carney and Mr Grimes made reference to the applicant’s first statement dated
20 September 2021 in their submissions and in my view it is an appropriate place to start to see whether the evidence supports a finding of an injury under any of the three alternative approaches outlined in paragraph 119 above.
In relation to that statement there are a number of important points to note which might be summarised as follows:
(a)    the applicant needed the assistance of an interpreter who was present;[48]
(b)    the applicant had the support of her husband at the time she made the statement and the statement was witnessed by him;[49]
(c)    the applicant gave a description of duties that seem to be to be an accurate outline of the type of work she would have done as a school cleaner;[50]
(d)    the applicant described her work as very hard work;[51]
(e)    the applicant stated that she did not have any pre-existing injury and was working with full capacity prior to her fall;[52]
(f)    at the time of her fall she landed on her left side and hit her ribs and hip and also had a swollen left leg below the knee;[53]
(g)    there is nothing in the statement suggesting that she hit her back or experienced back pain at the time of her fall, and
(h)    at the time of the applicant’s statement, she was complaining of pain all over her hip and ribs but did not make a complaint of back pain.[54]
[48] Application p2 at paragraph 9.
[49] Application p2 at paragraph 8.
[50] Application p3 at paragraph 18.
[51] Application p3 at paragraph 19.
[52] Application p6 at paragraph 50.
[53] Application p4 at paragraph 29.
[54] Application p4 at paragraph 40; application p6 paragraph 46.
At no stage in the proceedings did Mr Carney suggest that the contents of that statement were incorrect.
AALD1 is a supplementary statement made by the applicant and was filed on 30 June 2023 (the applicant’s second statement). The statement is undated but appears to be signed by the applicant. I note the following points in relation to that statement:
(a)    there is no indication that the applicant had the assistance of an interpreter in the preparation of same;
(b)    there is no indication that the applicant had the assistance of a support person at the time it was prepared;
(c)    there is no information to indicate who assisted the applicant in the preparation of the statement and how it came to be prepared;
(d)    the applicant’s second statement is unwitnessed;
(e)    the applicant restates that her work was heavy and that she was capable of doing same prior to her fall but adds a rider stating that occasionally she would have back pain after a day’s work but would treat same with Panadol;[55]
(f)    the applicant states that after her fall she had pain in her back and hip but she concentrated on the pain in her left wrist and leg as they were swollen,[56] and
(g)    that her back pain had steadily increased over time.[57]
[55] AALD1 at paragraphs 3 and 4.
[56] AALD1 at paragraph 5.
[57] AALD1 at paragraph 6.
Given the factors noted in paragraph 124(a)-(d) I have real doubts as to whether the applicant understood the contents of the document she was asked to sign and will approach the contents of the statement with some caution.
It can be seen that there are significant differences between the two statements of the applicant that are in evidence.
Significant differences between the two statements are seen in the following areas:
(a)    in the applicant’s second statement the applicant says that she had occasionally experienced back pain after work prior to her fall where it would resolve after taking Panadol;
(b)    in the applicant’s first statement the applicant stated that she did not have any pre-existing injury (emphasis added);
(c)    in the applicant’s second statement the applicant stated that after her fall she had pain in the back and hip as well as the left wrist and leg, and
(d)    in the applicant’s first statement the applicant gave no history of back pain at the time of the fall and gave no history of suffering from back pain at the time she gave her statement much less that the back pain was increasing.
I note that neither statement suggests that the applicant had any significant pre-existing back problems with one statement denying any such problems and the other suggesting only occasional problems that were readily treated by Panadol.
When considering what part of parts of the applicant’s two statements are accurate reflections of what has occurred it is important to consider whether there is material that corroborates any part or parts of either statement.
As noted at paragraph 71 above Mr Grimes drew my attention to the contents of the incident report prepared by Sergio Saavedra dated 26 February 2021, which is of course contemporaneous with the date of the applicant’s fall.
That report contains a diagram illustrating the areas where the applicant had reported injury. The diagram (and the text of the document) do not record any injury to the applicant’s back nor indeed to the hips nor of any complaint of radiation of pain down the applicant’s left leg.
The incident report is consistent with the applicant's first statement in having no reference to back pain or injury at the time of the fall and is inconsistent with the version contained in the applicant’s second statement of a contemporaneous back injury at the time of the fall.
The applicant was seen at her general practitioners’ practice on the day of the fall and was seen on that occasion by Dr Marino Eswararaj Bastiampillai.
The doctor’s notes record the following history;
“History of accidental fall in the work site of the School today at 8AM while cleaning. Complin [sic] of pain in the left knee and left elbow pain and wrist pain.? Soft tissue injury. No other injury noticed.”
It is significant that that the doctor specifically noted that “no other injury noticed” as it is in my view a clear indication that a question was posed to the applicant asking for details of all injuries that she suffered in the fall.
While there is no doubt that inconsistencies between a party’s evidence and medical histories in clinical notes should be treated with caution[58] in this matter the consistency between the applicant’s first statement , the notations in the incident report of Mr Saavedra and the contents of the medical records of the general practitioner lead me to conclude that the applicant’s second statement is inaccurate in alleging that there was immediate back pain at the time of her fall and that the back pain has continued to increase over time since the date of the fall.
[58] Per Basten JA in Mason v Demasi [2009] NSWCA 227.
There is one document in the application that was not referred to by Mr Carney nor
[59] Application pp8-16.
Mr Grimes in their submissions and that is a document headed “Worker’s Claim Form”.[59]
That document is apparently signed by the applicant (in that the signature resembles that on the applicant’s statements) but it is undated and has not been completed by the employer.
If there was evidence that the Worker’s Claim Form was prepared contemporaneously with the date of the fall or shortly thereafter I would consider it to be important evidence establishing that the applicant did, in fact, suffer a back injury in the fall as it contains a complaint of, inter alia, lower back pain.
I am confident that the Workers Claim Form was not prepared by the applicant as she requires the assistance of interpreters and Dr Miniter recorded that she only had marginal levels of education and was educated in a rudimentary fashion in Sri Lanka, her home.[60]
[60] Application p60.
Given that background I do not believe that the Worker’s Claim Form contains her writing (other than her signature) and the circumstances of its completion in terms of who prepared the document filling in the information in the form (which would require a significant degree of literacy in English) and when it was prepared are not otherwise revealed by the evidence in the case.
Accordingly the document headed Worker’s Claim Form should be given little weight in deciding whether the applicant suffered an injury to her back at the time of the fall on
26 February 2021.
In terms of any unequivocal mention of back pain post the fall on 26 February 2021 the earliest note in the medical records in the case is one in the general practitioner’s records on 20 April 2021.[61]
[61] Application p95.
I note that there is a reference to left lateral buttock pain and a referral for an MRI scan in the general practitioner’s notes on 17 March 2021.[62]
[62] Application p96.
The notes of the attendance at the general practitioner on 17 March 2021 followed attendances at the applicant’s treating physiotherapist who had recorded the applicant as suffering from left hip pain running postero-laterally down the thigh into the calf in a report to the general practitioner dated 11 March 2021[63] and in a subsequent dated 16 March 2021 had suggested an MRI to rule out other pathologies.[64]
[63] Application p46.
[64] Application p48.
Those symptoms of pain down the left leg in mid March 2021could possibly be consistent with the subsequently diagnosed left radiculopathy referred to in the medical reports but there is no mention in the physiotherapists reports of 11 March and 16 March 2021 of back pain and no mention of same in the general practitioner’s notes between 21 February and
20 April 2021.
The applicant saw her general practitioner over 300 times between August 2005 and the date of her fall in February 2021[65] and reported a range of illnesses, pains and other problems during that period.
[65] Application pp 95-182.
In particular I note many instances of the applicant attending the general practitioner with reports of back pain during that period (which will be referred to further) and accordingly I am confident that if she was experiencing back pain between 21 February 2021 and 20 April 2021 she would have reported same to her doctor.
As noted the applicant in her first statement indicated that she did not have any pre-existing injury and was working with full capacity prior to her fall whereas in her second statement she stated that she used to occasional instances where she had back pain after a day at work but she was able to successfully treat the problem with Panadol.
The impression created by either of the statements is one of a person working with full capacity and with little or no back problems prior to the fall on 26 February 2021.
As noted Mr Grimes in his submissions pointed out in great detail the medical records in evidence establish a long history of back problems going back to 2009.
As also noted earlier, Mr Carney in his submissions acknowledged that the applicant suffered from back problems and was receiving treatment for many years.
In considering the accuracy of either of the applicant’s statements it is apparent that neither statement accurately reflects the true medical picture of the applicant’s pre-injury condition.
While it is impossible to know when the applicant first experienced back problems she was seen by A/Prof Siri Kannangara in May 2009 where she was complaining about having right sided sciatica along the S1 distribution with an absent ankle jerk and weak foot plantar flexors.[66]
[66] AALD2 p1.
In a report dated 3 June 2009 A/Prof Kannangara reported that the applicant was suffering from significant spinal canal stenosis at L3/4 and L4/5 and while the doctor was “not keen on surgery as yet” he would keep her going as long as possible before being referred to a spinal surgeon.[67]
[67] AALD2 p2.
It is obvious that some 12 years prior to the fall on 26 February 2021 the applicant had significant problems with her back to the extent that a treating orthopaedic surgeon was already considering the necessity for spinal surgery to treat the problem.
In 2015 the applicant came under the care of Dr Jason Balgi consultant rheumatologist who in a report dated 1 October 2015 noted that she presented with symptoms of a right lumbar radiculopathy with concurrent osteoarthritis symptoms.[68]
[68] AALD2 p3.
At the time of the consultation with Dr Balgi the history was of a lot of pain from the applicant’s right lower back down into the buttocks, lateral thigh and foreleg.
The applicant was prescribed Lyrica and arranged for a CT scan.[69]
[69] AALD2 p4.
The CT scan was summarised as showing;
“1. Multilevel degenerative changes. This includes marked central type canal stenosis at L4/5 due to posteriocentral protrusion and facet joint degenerative changes.
2. At L3/4 there is spondylolisthesis with a moderate type canal stenosisand neural exit foraminal narrowing.
3. At L5/S1 posterocentral protrusion is causing some possible impingement on the descending portions of the S1 nerve roots bilaterally at this level.”
After the CT scan was carried out the applicant underwent a guided injection into her lumbar spine on the recommendation of Dr Balgi. The injection was made into the epidural space on the right at the L4/5 level.[70]
[70] AALD2 p5-6.
The applicant was seen at a follow-up consultation with Dr Balgi who provided a report dated 12 November 2015 to the applicant’s general practitioner dated 12 November 2015.[71]
[71] AALD2 p10.
In his report of 12 November 2015 Dr Balgi advised that the applicant had tolerated Lyrica badly but had a good response to the guided perineural injection. At that time she had mild paresthesia although the right leg pain had gone. (In relation to the applicant’s toleration of Lyrica I note that over time she appears to have developed a tolerance of the drug’s side effects and Lyrica has been regularly prescribed by her general practitioners over the years as noted in this decision.)
The applicant still reported back pain despite the injection.
The applicant had apparently also undergone X-ray examination which showed that she had widespread osteoarthritis particularly in her knees with milder changes in her sacroiliac joints.
Dr Balgi recommended repeat spinal injections after the first week of December 2015 to try and deal with the applicant’s residual symptoms.[72]
[72] AALD2 p10.
It appears from Dr Balgi’s reports that the applicant went overseas for some period of time between December 2015 and March 2016 and following her return from Sri Lanka she again consulted Dr Balgi who provided a report to the general practitioner following that consultation dated 31 March 2016.[73]
[73] AALD2 p11.
In his report Dr Balgi noted that the applicant’s most significant problem appeared to be her spine and that she still had claudication symptoms. The applicant noted that her symptoms were worse when walking and working but she also reported that her pain was particularly notable when lying supine.[74]
[74] AALD2 p11.
The applicant was also reporting pain in both knees and Dr Balgi injected both knees with methylprednisolone commenting that unless the knee injections helped her gait and “hence her back” she would need to proceed to another spinal injection at L4/5.
Dr Balgi did comment in his report that there were only a certain number of epidural injections that could be done and that she may need referral to a spinal surgeon.[75]
[75] AALD2 P11.
The applicant was again seen by Dr Balgi in late 2016 and he forwarded a report dated
[76] AALD2 PP12-13.
19 December 2016 covering that consultation to the applicant’s general practitioner.[76]
At the time of that consultation the applicant appeared to have continued to have pain in both knees, neck and left shoulder. The back symptoms appear to have been less acute at that time however the doctor was concerned about the possibility of the applicant suffering from an inflammatory arthritis in addition to her already diagnosed osteoarthritis. For completeness I note that a possible DVT issue was also raised by Dr Balgi as the applicant had persistent swelling in the left upper arm.[77]
[77] AALD2 pp12-13.
A further CT scan was carried out at the request of Dr Balgi on 4 March 2017 where multilevel canal stenosis, most severe at the L4/5, was noted. The applicant was also noted as having Paget’s disease in the right hemipelvis.[78]
[78] AALD2 pp14-15.
On 17 May 2017 the applicant had a further CT guided injection into her lumbar spine. The report noted that the L4/5 level of the lumbar spine could not be untilised for the injection due to the severity of the canal stenosis at that level and the injection was made into the left epidural space at the L5/S1 level.[79]
[79] AALD2 p16.
As I understand it this means that the degree of canal stenosis in the lumbar spine had worsened since the date of the earlier injections in 2015 which were made at the L4/5 level. I also note that the injection was made into the left epidural space rather than the right as formerly presumably because the applicant was experiencing left sided radicular symptoms.
In July 2017 Dr Balgi provided a report to Dr Jeyachandran the applicant’s general practitioner dated 6 July 2017 following a consultation subsequent to the injection on
17 May 2017.
The report detailed the applicant as suffering from a range of problems but in relation to the lumbar spine he noted the recent injection had been effective but he felt that “it is very likely that she is going to need to proceed to see a spinal surgeon”.[80]
[80] AALD2 p19.
Dr Balgi also noted that “I think it would be quite dangerous to continually inject her spine and at the next visit I will talk to her in more detail about seeking a spinal opinion”.[81]
[81] AALD2 p19.
The next visit to Dr Balgi by the applicant was reported on by Dr Balgi in a report to the applicant’s general practitioner Dr Jeyachandran dated 11 December 2017.[82]
[82] AALD2 p17.
The introductory section of the report detailed the applicant as suffering from a range of conditions that would potentially be productive of pain in the back, hips and legs.
The conditions noted were right L4 radiculopathy/canal stenosis, generalised osteroarthritis particularly in the knees and sacroiliac joints, concurrent inflammatory arthritis (possibly Psoriatic) and right hemipelvic Paget’s disease.[83]
[83] AALD2 p17.
In addition to the above conditions the applicant was noted as also having atopic dermatitis, varicose vein surgery, hypertension, hypercholesterolaemia, hypothyroidism and fibroid/ovarian pathology.
Dr Balgi noted that the applicant had long standing degenerative changes in the lumbar spine which contributed to quite severe canal stenosis and that he was reluctant to prescribe further injections. He suggested referral to a spinal surgeon but the applicant was unwilling to take his advice.[84]
[84] AALD2 p16.
For reasons that are not readily apparent the applicant seems to have changed her treating rheumatologist and returned to A/Prof Siri Kannangara’s care.
On 14 July 2019 A/Prof Kannangara referred the applicant for an MRI examination of her lumbosacral spine and the report of that examination was dated 15 July 2019.[85]
[85] AALD2 pp21-22.

The MRI report was prepared by a Dr John Ly and the summary of the findings headed CONCLUSION read as follows;
“High grade L4/5 and L3/4 central spinal canal and lateral recess stenoses with crowded and suspected impingement of the cauda equina roots particularly the L5 and L4 nerve roots in the lateral recesses respectively. Moderate grade L2/3 central spinal canal stenosis is noted with crowding of the cauda equina roots. Multilevel degenerative spondylosis particularly L2/3 to L4/5 levels. Marked L3/4 to L5/S1 facet joint osteoarthrosis is noted. There is moderate grade right L3/4 foraminal stenosis.”[86]
[86] AALD2 pp21-22.
In May 2020 A/Prof Kannangara performed an epidural injection to treat ongoing back problems. In his report of 22 May 2020 to the applicant’s general practitioner detailing the details of the injection A/Prof Kannangara also referred to the applicant as having psoriasis.[87]
[87] AALD2 p23.
The applicant was being treated by sports physiologist Ms Haylee Ingle in 2019/2020 who provided a report to Dr Jayachandran dated 3 November 2020.
The report of Ms Ingle recorded that the applicant had difficulty getting out of bed in the morning and needed the assistance of a crutch to do so. She needed the assistance of a crutch to and from the hydrotherapy sessions.[88]
[88] AALD2 p24.
The applicant was reporting right knee pain and pain in the left calf as well as low back pain.[89]
[89] AALD2 p24.
During the time the applicant was being treated by A/Prof Kannangara and Dr Balgi, who were specialist rheumatologists the applicant was of course seeing her general practitioner on multiple occasions (as noted earlier).
Without referring to every general practitioner attendance in detail a review of the medical records from the practice confirms that the applicant was suffering with neck, arm, shouder and knee problems together with general body pain before developing back symptoms.
In relation to her back symptoms it appears that some part of the general practitioner’s records are missing around 2009 as there must have been significant complaints of back pain at that time to warrant a referral to A/Prof Kannagara yet the relevant attendances with the general practitioner don’t appear in the records.
Nonetheless the general practitioners’ records confirm a constant record of treatment for back problems from 5 September 2012 onwards.
In the period from 5 September 2012 to 24 January 2013 attended her general practitioner on six or seven occasions where treatment for back pain and related problems included injections of anaesthetic and cortisone, prescriptions of Panadeine Forte and Endone and referral for radiological investigations.[90]
[90] Application pp153-155.
In August 2013 the applicant was complaining to her doctor about left leg pain which seems to be a different problem to her complaints about pain in her knees which were already a very significant problem for her.[91]
[91] Application p148.
On 15 May 2017 the applicant was seen by a Dr Kundalakesi Shanthini Sakthivel at her general practice and the doctor noted that the applicant was a new patient for the doctor and in a fairly detailed history noted the first problem of the applicant as being “chronic back issues”.[92]
[92] Application p129.
In July 2017 there is a note of increasing back pain with nurofen prescribed[93] and on
[93] Application p127.
[94] Application p123.
28 March 2018 there is a history of increasing back pain coming on three days after (emphasis added) working.[94]
In less than one month in May / June 2018 the applicant saw her general practitioner three times about back pain issues (along with a number of other attendances for other health issues).[95]
[95] Application pp119-121.
On 5 March 2019 the applicant saw her general practitioner complaining of pain in the left leg with numbness in the left lateral leg. The diagnosis was of left L4 radiculopathy and the applicant was prescribed Lyrica for her pain.[96]
[96] Application p112.
On 24 July 2019 the applicant was seen by her general practitioner reviewing the results of the MRI scan referred to in paragraph 186 above.
The notes taken by the general practitioner on 24 July 2019 refer to the scans showing moderate to severe L3/4 spinal stenosis and Lyrica is again prescribed.[97]
[97] Application p109.
On 6 August 2019 the applicant again saw her general practitioner complaining of left leg numbness and at that time the dosage of Lyrica was increased.[98]
[98] Application p108.
On 16 September 2019 the applicant saw her general practitioner with increasing low back pain and left foot numbness. It seems that on examination spasm was present.[99]
[99] Application p108.
On 8 October 2019 the applicant was seen by the general practitioner in relation to, inter alia, chronic back pain and was prescribed Endep.[100]
[100] Application p107.
When seen by one of her general practitioners Dr Jeyachandran on 2 October 2020 the applicant was prescribed Panadeine Forte and Endep for her back and knee pain.[101]
[101] Application p101.
On 17 November 2020 the applicant was seen by the general practitioner with symptoms of increasing psorarsis with leg spasm. She was prescribed Lyrica and an injection of triamcinolone acetonide.[102]
[102] Application p100.
Lyrica continued to be prescribed to the applicant in December 2020.[103]
[103] Application pp98-99.
On 8 February 2021 the applicant saw the general practitioner with a history of increasing back pain and right leg pain and what may have been left leg pain as well. The entry includes a reference to what may be left lateral lower leg pain.[104] Among other drugs prescribed the applicant was prescribed Lyrica and Endep by her doctor.[105]
[104] Application p99.
[105] Application pp98-99.
On Tuesday 16 February 2021 only 10 days before her fall at work the applicant saw her doctor complaining of increasing pain in her right leg and was prescribed Panadeine Forte and Lyrica.[106]
[106] Application p98.
I note that in addition to the multiple attendances for back problems the general practitioner’s notes reveal that the applicant had been treated for multiple health issues in particular for problems with her knees, neck, shoulders, wrists, elbows and hips which appear to be related to a general osteoarthritis condition and Paget’s disease and may also be related to an inflammatory arthritis as well.
She also appears to be having increasing problems related to what has been diagnosed as psoriasis.
In relation to her knees joint replacement surgery has been suggested.
It is apparent from the review of the medical records and reports prior to the fall on
26 February 2021 that the applicant had been suffering from very significant back problems and related leg pain for many years.
Significant spinal canal stenosis has been present since at least 2009 and that spinal canal stenosis has increased over time.
Surgical treatment of the applicant’s spine was first raised as a potential and indeed likely treatment by A/Prof Kannangara in 2009 but he hoped to defer the date of such treatment for as long as possible.
Dr Balgi by December 2017 had reached the view that further injections of the applicant’s spine were not appropriate and felt that at that time referral to a spinal surgeon was the appropriate treatment which is of course over three years prior to the fall on 26 February 2021.
No doubt part of Dr Balgi’s reasoning was based on the progression of the degree of canal stenosis in the applicant’s spine to the extent that an intended injection into the L4/5 level of the applicant’s lumbar spine could not proceed in mid 2017.
Over the years between 2009 and the date of her fall at work in 2021 the applicant has undergone multiple injections into her spine to treat back pain and radicular symptoms.
The records confirm that the applicant has been prescribed a range of drugs to deal with her back pain and related problems including Endep, Panadeine Forte, Lyrica and Endone. While I do not pretend to be a medical practitioner or pharmacist I am aware, from other cases I have dealt with over the course of many years doing personal injury matters, that those medications are prescribed by doctors for treatment of severe pain and are not available over the counter.
The applicant was so affected by her back pain and other medical problems that she needed a crutch to get out of bed in the morning as of late 2020.
It is apparent that the applicant was experiencing radicular pain on both the left and right sides with the left sided symptoms including numbness in the left leg and foot at various times during the period between 2009 and the fall in February 2021.
While commented on further below there is no record in the general practitioner’s notes of the applicant needing to attend for treatment of her back because of a work aggravation.
Having reviewed the days the applicant sought treatment at her general practitioner’s practice there appears to be no real temporal correlation between work and the need to seek treatment. The applicant was seen on a variety of days of the week. To the extent that any one day was more likely to be the day the applicant sought treatment Mondays appear to be the most common which is of course a day after a week-end and before the worker would be undertaking her work duties.
The picture that emerges from the medical records and reports between 2009 and February 2021 is not consistent with the positions outlined in either of the applicant’s statements.
The claim in the applicant’s first statement that she “did not have any pre-existing injury” and was working with “full capacity” is clearly incorrect.
The somewhat amended version in the applicant’s second statement that she occasionally had back pain but it would resolve after taking Panadol and otherwise was “fully functional and capable” is also an incorrect statement of her pre-fall condition.
In my view an accurate description of the applicant’s condition was of a person who was suffering from widespread osteoarthritis impacting much of her body, with severe spinal canal stenosis that was progressing in severity producing significant back and leg pain, who was in need of spinal surgery for some years and was being treated with a range of prescription medications for pain and who was so affected by her problems that she had difficulty getting out of bed without the assistance of a crutch but who nonetheless was persisting with her work duties despite her problems.
I consider the applicant’s evidence in both the applicant’s first statement and the applicant’s second statement to be unreliable having regard to,
(a)    the differences between the contents of each of her statements concerning the circumstances of her injury and the date of onset of her back and left leg pain;
(b)    the differences between her claimed pre-fall medical situation and the actual position as revealed by the medical records and reports;
(c)    the difference between the applicant’s second statement and the respondent’s incident report concerning the presence of back pain at the time of the fall and
(d)    the differences between the date of onset of back pain as alleged in the applicant’s second statement and the medical records of the general practitioner

and will regard the contents of her statements to be of little weight unless corroborated by other evidence.

It is clear that the applicant’s medical background is much more complex than suggested in her statements and it is my view of the evidence relating to the effects of the fall on
26 February 2021 is that it is more probable than not the applicant did not experience back pain at the time of the fall and that any back pain after her fall was first unequivocally reported on 20 April 2021 although it is possible that the applicant was suffering from radicular pain in the left leg from around 11 March 2021.
I do not accept that the applicant has established on the balance of probabilities that the fall on 26 February 2021 was associated with an immediate onset of back and left leg pain.
In considering whether the event of 26 February 2021 gave rise to incapacity for work and the need for the proposed spinal surgery it is in my view vital that the medical evidence for the applicant identify the nature of the injury, how it impacted on the applicant’s pre-fall medical condition and what is the significance of the delay in reporting back and related leg symptoms.
The applicant’s treating spinal surgeon Dr Brian Hsu has provided four medical reports that are in evidence.
The first medical report from Dr Hsu is dated 2 September 2021 and was forwarded to
Dr Ramachandran.
In the report of 2 September 2021 Dr Hsu noted that the applicant had “severe spinal canal stenosis over multiple levels along with spondylolisthesis at those levels as well”.[107]
[107] Application p41.
Dr Hsu went on to state that “she would likely require surgical intervention due to the severe nature of her neural compression”.[108]
[108] Application p41.
In an annexure to the report Dr Hsu recorded a history of the present illness as follows:
“Theresa is a very pleasant 62 year old lady who had a fall onto concrete on 26 February 2021. Before, she has been experiencing significant back pain and also increasing leg pain and numbness. Back pain is 9/10 and leg pain is also 9/10. She denies any bowel of bladder disturbance. She denies any fever, weight loss or loss of appetite. Pain is worse with standing but also worse at night with lying down. She wakes at night and has difficulty sleeping.”[109]
[109] Application p42.
Dr Hsu also referred to an MRI scan that had been taken in April 2021 which he described as demonstrating “severe spinal canal stenosis at L2-3, L3-4 and L4-5 due to significant spinal canal stenosis and significant disc bulging”.[110]
[110] Application p42.
Dr Hsu did not set out in that annexure any history that he may have received from the applicant about the injuries suffered in the fall and the timing of the onset of symptoms in the back. It is also unclear from that summary what if any details Dr Hsu had of the problems in the applicant’s back prior to the fall on 26 February 2021.
On 3 September 2021 Dr Hsu had a further consultation with the applicant and he forwarded a report of the same date to Dr Ramachandran.
In the report of 3 September 2021 Dr Hsu described the applicant’s presentation in the following terms;
“She presents with severe spinal canal stenosis and significant bilateral lower limb radiculopathy and she walks with a significant antalgic gait with severe positive sagittal balance due to her spinal canal stenosis. She has neurogenic claudication and the MRI scan of the lumbar spine confirms multilevel spinal canal stenosis due to the significant disc bulge from her work-related fall.
She has neurologic deficit on the left side with weakness in ankle dorsiflexion and she has nerve root tension signs bilaterally in the lower limbs.”[111]
[111] Application p44.
Dr Hsu does refer to a disc bulge being shown on the MRI scan and states that is the consequence of her fall and I assume that the MRI scan to which Dr Hsu refers was the one from April 2021 which he had also referred to in his earlier report dated 2 September 2021 and which he had summarised in the following terms;
“Available for review today is an MRI scan dated April 2021, which demonstrates severe spinal canal stenosis at L2-3, L3-4 and L4-5 due to significant spinal canal stenosis and significant disc bulging.”[112]
[112] Application p42.
Dr Hsu makes no mention in either report of having seen any of the earlier MRI and CT scans of the applicant’s back particularly the scan performed on 14 July 2019 which has been referred to earlier at paragraph 190 above.
In the MRI scan report dated 14 July 2019 of the MRI scan taken on that date the detailed findings were as follows;
“Findings: The lumbar lordosis is exaggerated. There is grade 1 anterolisthesis of L2 on L3 (3.5mm), L3 on L4 (3.5mm), and L4 on L5 (2.5mm). There is no pars defect. The conus tapers at L1. Crowding of the cauda equina roots is noted from L2/3 to L4/5 levels. The vertebrae demonstrate normal height and signal intensity. There is disc dehydration throughout the lumbar spine. Disc height loss is noted at L2/3 and L3/4 levels. The pedicles are developmentally short resulting in a small spinal canal. There is mild degenerative spondylosis from T9/10 to T11/12 levels. There is no associated distal thoracic cord compression.
At L1/2, no abnormality is identified.
At L2/3, there is mild to moderate-grade central spinal canal and lateral recess stenosis due to combination of short pedicles, diffuse disc bulge and ligamentum flavum thickening. There is mild to moderate crowding of the cauda equina roots. Marked facet joint osteoporosis is noted bilaterally. There is no foraminal stenosis.
AtL3/4, there is high grade central spinal canal and lateral recess stenosis due to combination of short pedicles, ligamentum flavum thickening and diffuse disc bulge. There is crowding of the cauda equina roots. Moderate right and left foraminal stenosis is noted. A small posterior central disc protrusion annular tear is identified. There is marked facet joint osteoarthrosis bilaterally.
At L4/5,there is high-grade central spinal canal and lateral recess stenosis with compression of the cauda equina roots, particularly the L5 nerve roots in the lateral recess. There is no foraminal stenosis. Marked facet joint osteoarthrosis is noted bilaterally. There are bilateral facet joint effusions with extensive subchondral marrow odema.
At L5/S1, a small posterior central annular tear is noted, not causing spinal canal or foraminal stenosis. There is marked facet joint osteoarthrosis bilaterally. No foraminal stenosis can be seen.”[113]
[113] AALD2 pp21-22.
I have not reproduced the summary conclusion as it has been quoted earlier but the detailed findings quoted in paragraph 248 show that disc bulges were identified at two levels in the applicant’s lumbar spine and annular tears were identified at two levels leaving aside the other findings.
The applicant’s solicitor wrote to Dr Hsu on 20 July 2022 seeking (inter alia) his comments on the applicant’s condition prior to the fall on 26 February 2021 and specifically asked whether the applicant was suffering from a significant spinal injury prior to the fall.
Dr Hsu responses to the questions posed by the applicant’s solicitor were set out in a report dated 6 September 2022 and were as follows (For reasons of clarity I note that I have omitted the numeration used in the letter to avoid confusion with the numbering in these reasons and I have introduced each reply with the word Answer):
“Could you comment on the workers condition prior to the accident on
26 February 2021.
Answer: I am unaware of any pre-existing conditions prior to the fall. When I reviewed her on September 2021, she has been experiencing significant back pain and also increasing leg pain and numbness. Back pain is 9/10 and leg pain is also 9/10 after she had a fall onto concrete on 26 February 2021. She does not have past medical history noted. She denies any bowel or bladder disturbance. She denies any fever, weight loss or loss of appetite. Pain is worse with standing but also worse at night with lying down. She wakes at night and has difficulty sleeping.
Would you please confirm whether the worker was suffering from a significant spinal injury prior to her fall on 26 February 2021.
Answer: I do not believe so.
If yes, do you agree that the worker’s employment as a cleaner for the past 15 years was a significant contributing factor to this injury?
Answer: The nature of her job as a cleaner, requiring repetitive movements such as bending, twisting and prolonged standing is a significant contributing factor to her injury.
Do you believe that the workers need for the fusion surgery resulted from the injuries sustained in her accident or due to pre-existing factors?
Answer: I am unaware of any pre-existing conditions prior to the fall.
If you believe the worker’s pre-existing condition is a significant contributing factor in her need for surgery, would you please comment on whether you believe her condition resulted form the conditions of her employment as a school cleaner.
Answer: The nature of her job as a cleaner, requiring repetitive movements such as bending, twisting and prolonged standing is a significant contributing factor to her injury.”[114]
[114] Application pp45(a)-45(b).

Dr Ciucanu recorded the following history of injury,
“Mrs Yogarajah tells me that she worked as a cleaner and that she was contracted for cleaning services by a Public School. While she was at school trying to empty a rubbish bin she as fell one step down while on the children’s playground. Unfortunately she landed over her left side and since then has suffered with severe back pain and associated left lower limb pain.”[140]
[140] Application p51.
Dr Ciucanu did not record any medical history prior to the fall on 26 February 2021 and appears to accept the history of severe back pain being experienced contemporaneously with the fall.
In fairness Dr Ciucanu’s report was directed towards establishing a treatment regime to deal with the applicant’s health problems and was not directed to setting out an opinion as to causation of those problems.
No opinion on causation is expressed in the report of Dr Ciucanu.
The applicant also relies upon a report of Dr Alister Ramachandran dated 21 June 2021.
Dr Ramachandran is the applicant’s treating pain specialist and his report is one that sets out a series of questions he has been asked to answer by the insurer.
Of relevance to the issue of causation of the applicant’s condition the following questions and answers are set out in the report (as before I have reproduced the questions and answers without utilizing the numeration used in the report to avoid any confusion with the paragraph numbering in this decision):
“Question: Please advise what portion of Theresa’s presentation is related to the specific fall reported to Ventia in February 2021?
Answer: Mrs Theresa Yogarajah presented with a work-related injury whilst employed as a cleaner at Winston Hills Public School. She reports an incident on 26 February 2021 when she tripped and fell onto her left side resulting in a sudden onset of left leg pain and low back pain. Based on her history it seems the fall was the main precipitating factor for her leg and back pain (emphasis added).
Question: Please advise how these symptoms are directly related to the fall reported on 26 February 2021.
Answer: As above, she did report mild back pain prior to the event (emphasis added) which did not impact her functioning and work engagements. However, since the fall she is unable to perform her duties due to significant lower limb neuropathic pain.
Question: The initial injuries reported as a result of the fall were left knee, wrist and elbow pain, these were in line with the initial report of injury made to Ventia. On 19 March 21 additional components were added to the certificate of capacity to include left lower posterior chest and lateral lower leg pain, a report request was made of Dr however it would be appreciated if you could please comment on these additional body parts being added a month post incident.
Answer: The history provided to me is as above, pain in the left lower limb and lower back since the fall in February 2021.
Question: Please provide your medical opinion as to the reason the diagnosis was altered in March to include the lower posterior chest and lateral lower leg.
Answer: Unable to comment.”[141]
[141] Application pp54-55.
It is patently clear that Dr Ramachandran’s view on causation is based on the applicant’s history of an immediate onset of left leg pain and low back pain at the time of the fall on
26 February 2021. That is in my view on the balance of probabilities an incorrect history as I have found.
It is also clear that as with her history to Dr Endrey-Walder the applicant gave to
Dr Ramachandran an incorrect description of her pre-fall back condition. As I have also found the evidence clearly establishes that the applicant had suffered significant back problems and leg pain over many years requiring treatment that included injections into the lumbar spine and prescription of strong analgesic medications.
Given the incorrect and unreliable history given by the applicant to Dr Ramachandran I cannot accept his view on causation of the applicant’s back and leg pain as reproduced in paragraph 314. In my view it is absolutely clear that his view on causation of the condition is reliant on that inaccurate history.
The only other medical report from a doctor relied upon by the applicant is a document dated 10 March 2022 which was prepared by the applicant’s general practitioner Dr K Jeyachandran.
The document from Dr Jeyachandran appears to be a certificate directed to a third party stating as follows:
“This is to confirm that Mrs Theresa Yogarajah, aged 63yrs, sustained lower back pain with left leg radiculopathy following accidental fall on 26/02/2021 at her work. She is unable to walk or stand witoutsic] support after the above fall. He [sic] saw a spinal surgeon and awaiting for spinal surgery.”[142]
[142] Application p49.
The document is clearly provided for a limited purpose and does not in my view assist the applicant’s case.
There is a statement that the applicant is suffering from lower back pain and left leg radiculopathy following a fall at work on 26 February 2021.
If it is suggested that the document provides evidence of an immediate onset of back and left leg pain following the fall it is in error as the weight of evidence in the case is that the back and leg pain complaints came on weeks later.
I note that Dr Jeyachandran was not the general practitioner who saw the applicant on the day of the fall but rather one of his colleagues at the same practice Dr Marino Eswararaj Bastiampillai[143]so the document dated 10 March 2023 is not one prepared by a person who saw the applicant at the time of the fall and would have personal knowledge of the complaints of injury that were made.
[143] Application p97.
In any event the document does not actually state that the fall caused the back and left leg pain – it simply states that the applicant has lower back and left leg pain following the fall. To suggest that causation is established just by the fact that a condition (pain) is found after an event (fall) is an example of the post hoc ergo propter hoc fallacy.
The document does not otherwise deal with the question of causation and quite clearly does not in anyway engage with the applicant’s past medical history which includes long standing lower back and leg pain complaints and relevant underlying health conditions such as developmentally narrow spinal canal, generalised osteoarthritis and psoriasis.
The document is of little evidentiary weight having regard to the considerations noted.
In his submissions Mr Carney drew my attention to the reports of the physiotherapist Tomoki Ohashi as providing assistance on the causation issue.
The reports are dated 11 March 2021[144]and 16 March 2021.[145]
[144] Application pp46-47.
[145] Application p48.
In the report dated 11 March 2021 the history on initial presentation is recorded as follows:
“Theresa initially presented to Physiotherapy on the 10^th March 2021 regarding her L leg, L elbow and L chest pain following a fall at her workplace on the 26^th February 2021.”[146]
[146] Application p46.
It is to be noted that no complaint of lower back pain was recorded.
The applicant’s main complaint at the time was of left hip pain and on what was described as “thorough examination” the applicant was noted as having “significant reduction in L/sp extension(to 5%), inability to tolerate L hip flexion in supine and hypertonic gluteal muscles”.[147]
[147] Application p46.
The diagnosis was of “gluteal muscle irritation and trochanteric bursitis”.[148]
[148] Application p46.
The report is consistent with the other material that does not record any contemporaneous complaint of back or left leg radicular pain at the time of the fall.
The second report is dated 16 March 2021 and still makes no reference to the applicant suffering back pain.
The physiotherapist notes that applicant is complaining of left lateral shin pain and notes that the pain could be coming from the low back/hip region as well as locally[149]and suggests referral for an MRI to rule out other pathologies but otherwise the report does not assist on the issue of causation of the subsequent complaints of back pain.
[149] Application p46.
In my view at its highest the combination of the two physiotherapy reports suggests that perhaps by 16 March 2021 the applicant was experiencing some lower left leg pain but the cause of that pain and its relationship to a fall almost three weeks earlier is not established.
Mr Grimes in his submissions argued that I should accept the opinion of A/Prof Paul Miniter dated 26 October 2021[150] which could be summarised by his comment “The workplace incident that has been described could not be held responsible for her current presentation”.[151]
[150] Application pp57-66.
[151] Application p61.
A/Prof Miniter apparently saw the applicant via a telehealth consultation due to COVID-19 restrictions and accordingly was not able to conduct a physical examination of the applicant which necessarily limits his ability to assess her then current physical condition.
A/Prof Miniter did however have the assistance of an interpreter for the purposes of his interview with the applicant.[152]
[152] Application p58.
I have some difficulties with A/Prof Miniter’s report in that in the body of the report he commented “The extreme nature of her presentation does not have a plausible explanation”[153] and otherwise had commented that the “extreme nature of her presentation is not supported by the investigations”[154] but when he was apparently provided further material and asked to comment he appears to accept that the applicant may have a serious problem stating “If she does have genuine neurogenic claudication, and it its possible based upon the investigative findings, then these features are definitely unrelated to the fall in the workplace.”
[153] Application p63.
[154] Application p62.
Prior to being asked to comment on additional material A/Prof Miniter gives the impression of wanting to minimize the applicant’s condition and he actually states that she should “ostensibly be able to return to work”[155], and that she has “simple musculoskeletal pain”[156] but when presented with additional material suggests that the applicant has a serious underlying problem but unrelated to work.
[155] Application p63.
[156] Application p59.
A/Prof Miniter also refers to the applicant having an “alleged”[157] fall, that there was “no good reason for her to have fallen”[158] and that the fall was “unwitnessed”.[159]
[157] Application p62.
[158] Application p59.
[159] Application p64.
In my view the report of A/Prof Miniter does have a flavour of being partisan advocacy rather than an independent medical assessment which does affect the weight I give it.
Despite my reservations about his report A/Prof Miniter is the only medical witness who provides an opinion based upon a correct history that did not include an incorrect claim of contemporaneous back pain and an immediate onset of pain in the left leg.[160]
[160] Application p59.
A/Prof Miniter also appears to have considered much more (but not all) of the applicant’s pre-fall medical history than has been considered by the other medical experts.
Having regard to the totality of the evidence I do not feel an “actual persuasion”[161] that the applicant suffered any injury to her lumbar spine in the fall on 26 February 2021 and I am not satisfied on the balance of probabilities that an injury to the lumbar spine was sustained on that date.
[161] See Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 at para 105.
It is my view that on the basis of the medical evidence before me that, on the balance of probabilities, the symptoms presently complained of by the applicant in relation to her back and legs are the consequence of a long established disease process in the spine that prior to the fall had reached the stage in December 2017 where surgical treatment of the spine was required. Prior to the fall on 26 February 2021 the applicant had suffered years of back pain with radicular type pain being experienced bilaterally at various times. By November 2020 the applicant required the assistance of a crutch to get out of bed and in the approximately two week period before the fall on 26 February 2021 she had seen her general practitioners’ practice twice for back and leg pain problems being prescribed Lyrica and Endep for those problems.
Progression of the spinal canal stenosis was anticipated by Dr Siri Kannangara when he saw her in June 2009 and where he hoped to “keep her going as long as possible”.[162] What has happened with the applicant is in line with that prognosis.
[162] AALD2 p2.
Accordingly I do not accept that the applicant suffered a personal injury being an incident causing an aggravation of an existing condition of the lumbar spine within the meaning of s 4(a) of the 1987 Act.
Having made the finding that the applicant did not suffer a personal injury involving her lumbar spine condition in the fall on 26 February 2021 the question as to whether employment was a substantial contributing factor to the injury does not arise.

Did the applicant suffer an injury to her lumbar spine in the nature of a disease contracted in the course of her employment to which the employment was the main contributing factor within the meaning of s 4(b)(i) of the 1987 Act?

The next issue to consider is whether the applicant contracted a disease in the course of her employment to which the employment was the main contributing factor in contracting the disease.
The applicant suffers from spinal canal stenosis in her lumbar spine with associated degenerative changes such as disc bulges and annular tears however there is no evidence before me that suggests that the spinal canal stenosis and the other degenerative changes were contracted in the course of her employment.
The spinal canal stenosis was established at least as long ago as May/June 2009 which predates the applicant commencing work with the respondent.
The spinal canal stenosis appears to be related to the applicant having developmentally short pedicles, a generalised osteoarthritis, an inflammatory arthritis and psoriasis all of which are constitutional conditions. There is absolutely no evidence that suggests that those conditions were contracted in the course of her employment much less that the employment was the main contributing factor to contracting the conditions.
I therefore find that there is no basis for a finding that the applicant suffered an injury to her lumbar spine in the nature of a disease contracted in her employment to which her employment was the main contributing factor.

Did the applicant suffer an injury to her back, specifically to her lumbar spine, in the nature of an aggravation, acceleration, exacerbation or acceleration of a disease to which the employment was the main contributing factor to such aggravation, acceleration, exacerbation or deterioration within the meaning of s 4(b)(ii) of the 1987 Act?

Having made a finding that the applicant did not suffer any injury to her lumbar spine in the fall on 26 February 2021 and accordingly the fall could not constitute an aggravation of any disease affecting the applicant’s lumbar spine the remaining issue to deciding whether the applicant suffered an injury arising out of or in the course of her employment is whether she suffered an injury in the nature of an aggravation acceleration, exacerbation or deterioration of a disease as a consequence of the nature of the duties performed in the course of her employment.
As has been stated the applicant has suffered from diagnosed spinal canal stenosis at least since mid 2009 when she was first seen by A/Prof Siri Kannangara and has been diagnosed with degeneration of the lumbar spine, generalised osteoarthritis and psoriasis all of which could contribute to the worsening of the spinal canal stenosis.
The problem for the applicant in arguing that the applicant’s employment duties aggravated, accelerated, exacerbated or caused deterioration of the lumbar spine disease is that there is limited support in the medical evidence for the proposition.
Almost all doctors whose reports are relied upon by the applicant provided opinions based upon a history that the applicant had no real problems prior to her fall other than occasional backache which she treated with Panadol.
Dr Endrey-Walder’s report of 6 December 2021 is clearly based on that assumption and his opinion is best summed up by his comment,
“Neither Dr Miniter nor I would have been needed to assess your client’s condition were it not for the accident described, this with or without any pre-existing condition.”[163]
[163] Application p39.
While Dr Endrey-Walder expressed the view that “There is a direct connection between your client’s severe back pain, pain at her left elbow, left hip and the fall described” at no stage does he ever suggest that her condition is the consequence of the aggravation of her disease by the nature of her duties performed for the respondent.
The only doctor that appears to support the proposition that the work duties contributed to her injury is Dr Hsu in his reports dated 6 September 2022 and 9 January 2023 where he does state that “the nature of her job as a cleaner, requiring repetitive movements such as bending, twisting and prolonged standing is a significant contributing factor to her injury”.[164]
[164] Application pp45(a),45(b),45(c) and 45(d) where the same formulation is repeated.
As I have noted above the opinions of Dr Hsu are almost incomprehensible and the comments in relation to the work duties contributing to her injury are no easier to understand than the other parts of his reports referred to earlier.
Dr Hsu does not identify what he means by “injury” so it is not apparent from the report what condition he says was aggravated, accelerated, exacerbated or deteriorated as a consequence of her performance of her work duties.
The next problem with Dr Hsu’s opinion is one that has been referred to earlier and that is because of his repeated assertion that there was no pre-existing condition prior to the fall[165] any aggravation, acceleration, exacerbation or deterioration must (as a matter of logic) be caused by work duties performed after the fall. As far as I am aware the applicant has never returned to work to perform such duties so the work duties could not be a contributing factor to the injury.
[165] Application pp 45(a), 45(c), 45(d).
The opinion that the work duties contributed to an aggravation, acceleration, exacerbation or deterioration of the condition of the applicant’s lumbar spine also has another significant problem that arises from the delay in the onset of back and leg symptoms. As I have found back and left leg symptoms came on some weeks after the fall and the applicant was clearly not performing her work duties at the time so it is difficult to understand how the work duties identified by Dr Hsu contribute to the onset of back pain and disability at that time.
A further problem with Dr Hsu’s opinion is that he states that the identified work duties were a significant contributing factor to her “injury” which is not the test to be applied under s 4(b)(ii) of the 1987 Act.
While the fact that the doctor does not address the ultimate legal question of whether the employment was the “main contributing factor” to the aggravation, acceleration, exacerbation or deterioration is not necessarily fatal to the applicant’s claim[166]and the whole of the evidence needs to be considered to decide whether employment is the main contributing factor to the alleged injury the fact that Dr Hsu has only suggested that employment duties were a significant factor contributing to the applicant’s injury is fatal to the allegation of an injury in the nature of aggravation, acceleration, exacerbation or deterioration of a disease as there no other medical witnesses supporting that proposition and there are too many other factors that have been identified as contributing to the condition of the applicant’s lumbar spine including developmentally short pedicles, generalised osteoarthritis and psoriasis.
[166] See State Transit Authority of New South Wales v El-Achi [2015] NSWCCPD 71.

Those other factors are in my view, on the basis of the evidence in the case and the balance of probabilities, far more likely to be the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the applicant’s lumbar spine condition than the cleaning duties undertaken by the applicant for the respondent.
Other than Dr Hsu’s opinion there is no other medical opinion evidence suggesting that work duties contributed to the applicant’s lumbar spine condition and as I have noted earlier a review of the applicant’s attendances on her general practitioners does not establish any correlation between the dates of attendances and her work duties.
A review of the applicant’s general practitioners’ notes also does not reveal attendances with the applicant complaining of back or leg pain at work or as a consequence of work. Given the limitations of a medical practice’s record system that absence of complaints of injury from work duties is of course not determinative but the absence of such notations does not assist the applicant’s case.
Dr Balgi’s report dated 31 March 2016 does have a history of symptoms increasing while at work but also records that symptoms worsened while walking and while lying down.[167] That is the only reference in the medical records that provides some support for the proposition that the applicant’s work duties contributed towards an aggravation of the applicant’s lumbar spine condition but that reference is almost five(5) years prior the fall at work on
[167] AALD2 p11.
26 February 2021 and even at that time other activities were also noted as contributing towards the aggravation of her symptoms.
Given the lack of weight that I must give to Dr Hsu’s opinions given the problems identified in his reports, the failure by Dr Hsu to apply the correct test of injury for the purposes of
s 4(b)(ii) of the 1987 Act and the lack of any other evidence supporting a finding that the applicant’s work duties were the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease the applicant has failed to discharge her onus of proof.
At paragraph 351 I stated that in my view the medical evidence establishes on the balance of probabilities that the applicant’s spinal canal stenosis and associated degenerative disease in the lumbar spine was a pre-existing condition that the applicant suffered from prior to commencing work with the respondent. The condition appears to have been the result of the developmentally short pedicles resulting in a narrow spinal canal, a constitutional generalised osteoarthritis affecting the lumbar spine as well as a number of other parts of her body, inflammatory arthritis and psoriasis. The condition was progressive and as expected by A/Prof Kannangara in 2009 by late 2017 the applicant’s condition had reached the point that spinal surgery was required although the applicant did not take up that recommended treatment at that time. Immediately prior to her fall on 26 February 2021 the applicant’s condition was so bad that she needed the assistance of a crutch to get out of bed and saw her general practitioners twice in a fortnight for treatment of her back problems.
I further on the balance of probabilities that the applicant’s lumbar spine condition was not caused nor aggravated by the fall on 26 February 2021 nor by the duties the applicant performed as a cleaner.

Claim for weekly payments compensation

Given my findings on the issue of injury in relation to the applicant’s back and given that the applicant’s counsel specifically advised me in response to a question that the applicant was only relying on the claim of her injury to the back for the purposes of the weekly payments claim there is no necessity to deal with the claim for weekly compensation although I note that if I had decided that the applicant had suffered a work injury to her back I would have found that she had no current work capacity.

Claim for payment of s 60 medical expenses

In relation to the claim for s 60 expenses there will be an award for the respondent although I note that if the evidence had established that the applicant had suffered an injury to her back under either s 4(a) of (b) of the 1987 Act I would have had some concern that the applicant had failed to discharge her onus of establishing that the need for surgery resulted from her injury given the recommendations and opinions of Dr Balgi in 2017.

SUMMARY

I find on the balance of probabilities that the applicant did not suffer a personal injury to her lumbar spine arising out of or in the course of her employment with the respondent.
I find on the balance of probabilities that the applicant did not suffer an injury to her lumbar spine in the nature of a disease contracted in the course of her employment to which her employment was the main contributing factor.
I find on the balance of probabilities that the applicant did not suffer an injury to her lumbar spine in the nature of the aggravation, acceleration, exacerbation or deterioration of a disease to which her employment was the main contributing factor to any such aggravation, acceleration, exacerbation or deterioration.
There will be an award for the respondent on the claim for weekly compensation.
There will be an award for the respondent on the claim pursuant to s 60 of the 1987 Act for payment of the claimed medical, hospital and related expenses.

[2023] NSWPIC 431

28 August 2023