(d) Exhibit “D” are a number of medical reports from Professor Simon Hawke
which are dated 22 December 2010, 3 August 2010, 29 July 2010, 5 March 2010
...
WORKERS COMPENSATION COMMISSION CERTIFICATE OF DETERMINATION (Issued in accordance with section 294 of the Workplace Injury Management and Workers Compensation Act 1998)
MATTER NO: APPLICANT: RESPONDENT: DATE OF DETERMINATION: CITATION:
008381/11 BRENDA MAREE HOOPER ROADS AND TRAFFIC AUTHORITY OF NSW 13 April 2012 [2012] NSWWCC 104
The Commission determines: 1.
The applicant’s current incapacity which she suffers in her lumbar spine and in particular at L4/5 is as a result of the injuries she suffered whilst working for the respondent on 12 February 2004.
2.
I refer to the Registrar to have the proposed medical treatment to the applicant’s lumbar spine assessed by an Approved Medical Specialist in accordance with the provisions of section 60(5) of the Workers Compensation Act 1987.
3.
The Approved Medical Specialist is to have regard to these reasons and the exhibits filed in the proceedings.
4.
The respondent is to pay the applicant’s costs as agreed or assessed. To those costs I provide an uplift of 25 per cent available to both parties on the grounds of complexity.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.
I CERTIFY THAT THIS PAGE AND THE FOLLOWING PAGES IS A TRUE AND ACCURATE RECORD OF THE CERTIFICATE OF DETERMINATION AND REASONS FOR DECISION OF JEFFREY PHILLIPS SC, ARBITRATOR, WORKERS COMPENSATION COMMISSION.
Abu Sufian Acting Senior Dispute Services Officer By Delegation of the Registrar
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STATEMENT OF REASONS BACKGROUND 1.
Brenda Maree Hooper (the applicant) worked for the Roads and Traffic Authority (the respondent) as a part-time casual crossing supervisor. Whilst so engaged, the applicant was standing on the side of the crossing opposite a school in Millthorpe, New South Wales when her left foot slipped on something like hard seeds on the ground near a tree. When she did so her left leg slipped from under her. She reported that she jarred her low back and neck, although did not actually fall to the ground. Immediately upon this event happening she had pain both in her neck and low back. Over the next few days she developed pain in her left lower extremity as well as pins and needles. She consulted medical practitioners. An MRI scan revealed significant disc protrusion at L4/5. She was referred to Dr Ian Farey, orthopaedic surgeon who carried out an L4/5 discectomy on the applicant on 16 August 2004. She felt improvement but it did not completely resolve. Post operatively she attended physiotherapy sessions and took anti-inflammatory medication.
2.
On 19 June 2009, Dr Mark Burns, an Approved Medical Specialist (AMS) provided a Medical Assessment Certificate (MAC) as a result of the injury of 12 February 2004. The body parts referred to the Registrar for an assessment by the AMS were the applicant’s “lumbar spine, thoracic spine and cervical spine”. The assessments made were 5 per cent whole person impairment to the applicant’s cervical spine, nil percent whole person impairment to her thoracic spine and 16 per cent whole person impairment to the lumbar spine, totalling 20 per cent as a result of the injury of 12 February 2004.
3.
The applicant had also entered into a complying agreement in accordance with s 66A of the Workers Compensation Act 1987 (the 1987 Act) as a result of the injury of 12 February 2004. The applicant complains of ongoing incapacity and has been advised by Dr Rodney S Allan, a neurosurgeon that she requires further surgical treatment. Dr Allan advises a “repeat microdiscectomy”.
ISSUES FOR DETERMINATION 4.
The respondent disputes whether the proposed surgery is as a result of the injury of 12 February 2004. At the hearing of this matter I was told by counsel for the respondent that a two staged approach is necessary. I, as arbitrator need to determine whether the proposed surgery is as a result of the injury of 12 February 2004. If I do so determine then the matter needs to be referred to the Registrar for her to have the proposed surgery assessed by an AMS in accordance with the provisions of s 60(5) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION 5.
A teleconference was held in this matter on 4 November 2011. At that time Mr Phillip Young, solicitor appeared for and with the applicant. Mr David Cooper, solicitor appeared for the respondent. At the teleconference Mr Cooper confirmed the terms of the s 74 notice which had been sent to the applicant declining her claim. Mr Cooper said there was no causal link between the injuries she suffered on 12 February 2004 and the requirement for surgery. He indicated that that issue of liability must be determined prior to the matter being referred to an AMS in accordance with s 60(5) of the 1987 Act. Accordingly, the matter was set down for hearing in Dubbo at 1:30pm on 1 February 2012 for a conciliation/arbitration hearing.
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6.
The case duly came on for hearing in Dubbo on that day at the Cascades Motor Inn. At that time Mr Phillip Young, solicitor once again appeared for and with the applicant. Mr Phillip Perry, of counsel appeared for the respondent instructed by Messrs Thompson Cooper Lawyers. Conciliation took place, however it was unsuccessful and the matter required to be determined.
EVIDENCE 7.
8.
Documentary evidence: (a)
Exhibit “A” is the Application to Resolve a Dispute (the Application), save for pages 18-29 which were not pressed;
(b)
Exhibit “B” is the Application to Admit Late Documents dated 6 December 2011;
(c)
Exhibit “C” is the Application to Admit Late Documents dated 13 December 2011, and
(d)
Exhibit “D” are a number of medical reports from Professor Simon Hawke which are dated 22 December 2010, 3 August 2010, 29 July 2010, 5 March 2010 and 22 February 2010.
The documentary evidence relied upon by the respondent was: (a)
9.
Exhibit “1” is the Reply.
It needs to be noted that there was an amendment made orally by consent to exhibit “C”. Exhibit “C” is the statement dated 9 December 2011 from the applicant. Paragraph 13 of that statement on page 2 was amended so that it now reads: “I have discussed the operation with my treating neurosurgeon Dr Allen [sic], having regard to the risks involved notwithstanding those risks I wish to proceed with such treatment to avoid any further delay in my rehabilitation.”
10.
The applicant was present throughout the conciliation and the arbitration. No request was made to cross-examine her by counsel for the respondent.
SUBMISSIONS 11.
Mr Perry, for the respondent, said this is not a case where I need to determine any question as found in s 9A of the 1987 Act dealing with whether employment was a substantial contributing factor to the injury. The injuries have already been identified and accepted. The question I need to consider is whether the ongoing difficulties she is facing are as a result of that injury, thereby requiring the surgery as suggested by Dr Allan. The respondent relies upon the opinion provided by Professor Kiernan, found in exhibit “1”. Professor Kiernan’s report is dated 19 August 2011, commencing at page 8 of exhibit “1”. Professor Kiernan is the Professor of Neurology at the University of New South Wales. At page 6 of the report, Professor Kiernan states that the applicant has a degenerative process in her spine of a constitutional nature and that the injury of 2004 “effected an exacerbation in this process”. However, he says in relation to the need for operative treatment as follows: “From a neurological perspective, there is no indication for surgical intervention. Specifically, the findings on neurological examination are currently not those of 3
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radiculopathy. Surgical intervention may be considered at some stage in the future to address pain related issues.” Further, he says: “If surgery was undertaken, this would not relate to the incident that occurred on 12 February 2004. In my opinion this would relate to the degenerative, constitutional changes that have developed in the lumbo sacral spine.I also note the report from the treating neurologist who did not think that the current presentation was linked to the incident in 2004.” Mr Perry fairly said that that part of the opinion was possibly the second limb of the task before the Commission and was more appropriately a matter for the AMS to determine in accordance with the provisions of s 60(5) of the 1987 Act. 12.
During the course of argument, Mr Perry accepted that the disc prolapse at L4/5 was as a result of the incident of 12 February 2004. However, his argument was that the current disabilities the applicant is suffering do not relate or have no causal connection to that injury. In making good his submission he referred to the many reports of the consultant neurologist, Professor Simon Hawke, found in exhibit “D”.
13.
Mr Perry read part of Professor Hawke’s report dated 22 December 2010 (exhibit “D”). Mr Perry referred to the history of the applicant having had a laminectomy in August 2004 and in the past two years his symptoms have gradually recurred and had become problematic at the end of 2009 and early 2010. In relation to these problems the following is stated: “The recrudescence of pain at the site of previous disc prolapse has been shown to be due to recurrent disc prolapse at the operative level. It is certainly possible that other non-work related problems have led to this recurrent prolapse. That being the case, it would be my opinion that the work related injury in 2004, which certainly sounded rather trivial although which led to the original disc prolapse, could be a predisposing factor to the now evident disc prolapse at the same level. It is impossible to determine if this is a substantial contributing factor although I do think it contributes in some way. Having said that, given the fact that she told me she was pain free for two years, I think it would be reasonable to conclude the original injury in 2004 is not the contributing substantial reason for the current symptoms or to the recurrent disc prolapse at the L4/5 level.”
Applicant’s submissions 14.
Mr Young, for the applicant, relied upon the MAC of Dr Mark Burns, dated 19 June 2009. In relation to the injury, the AMS found: “Mrs Hooper sustained a soft tissue injury to the cervical spine and a disc protrusion at L4/5 in the lumbar spine to the left with a left radiculopathy. She also has a soft tissue injury to the thoracic spine which appears to give intermittent discomfort.”
15.
Mr Young said rather than Professor Hawke’s opinion being contrary to the applicant’s interests it in effect is based upon the relevant legal authorities that support the applicant. This support is given on the basis that Professor Hawke agrees that the fact of the disc prolapse as a result of the injury of 2004 and has now predisposed the applicant to ongoing problems and the injury “contributes in some way” (exhibit “D”, report dated 22 February 2010). Mr Young also noted an earlier report from Professor Hawke dated 22 February 2010 (exhibit “D”) stated that after the laminectomy he got my Ian Farey in August 2004, as follows: 4
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“Post operatively, she did very well for two years but over the last two years her symptoms have gradually recurred.” Further: “A CT scan showed possible recrudescence of the disc prolapse at the L4/5 level.” FINDINGS AND REASONS 16.
Section 60 of the 1987 Act reads as follows: “60 Compensation for cost of medical or hospital treatment and rehabilitation etc (1)
If, as a result of an injury received by a worker, it is reasonably necessary that: (a) any medical or related treatment (other than domestic assistance) be given, or (b) any hospital treatment be given, or (c) any ambulance service be provided, or (d) any workplace rehabilitation service be provided. the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of the treatment or service and the related travel expenses specified in subsection (2).
... (5)
The jurisdiction of the commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the registrar for assessment under part 7 (medical assessment) of chapter 7 of the 1998 Act, unless the regulations otherwise provide.”
17.
It was not in issue that the respondent accepted that the injury suffered by the applicant on 12 February 2004, in particular to the applicant’s lumber spine, inter alia was an injury as defined by ss 4, 9 and 9A of the 1987 Act.
18.
During his submissions, Mr Perry took me to a presidential decision of the Commission. That decision was Bielecki v Rianthelle Pty Limited trading as Belflora [2008] NSWWCCPD 53 (Bielecki), a decision of 21 May 2008 of Deputy President Bill Roche. In that case, the learned Deputy President noted: “Employment must be a contributing factor to the ‘injury’, not the incapacity or loss resulting from the injury (Rootsey v Tiger Nominees Pty Limited (2002) 23 NSWCCR 725.” (at [19])
19.
The Deputy President then went on to consider how a worker may recover expenses under s 60 of the Act. At [20] he said this: “That is, to establish liability under s 20, three conditions must be satisfied:
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a. That the worker received an injury to which employment was a substantial contributing factor; b. That the relevant treatment or expense was ‘as a result of’ that injury, and c. That the treatment was ‘reasonably necessary’.” 20.
Mr Perry helpfully pointed out to me that my task as set out in Bielecki was that found in (b), that is that the relevant treatment or expense was “as a result of” that injury. As to whether it is reasonably necessary that would be only determined once liability is assessed by me in accordance with subparagraph (b) of [20] of Bielecki.
21.
The most important thing which comes out of the authority of Bielecki is the misguided reference to the expression “substantial contributing factor” in considering a s 60 medical expense claim. Once injury has been determined one then needs to consider whether the treatment sought was reasonably necessary “as a result of the injuries found”. I need to determine whether the proposed treatment is “as a result of the disc prolapse at L4/5” which has occurred.
22.
The report of Professor Hawke of 22 December 2010 was relied upon by both parties. However, Professor Hawke’s report contains the very error which Bielecki’s case warns against. Perhaps it is an occasion where a medical practitioner has fallen into giving a legal opinion and on occasions lawyers lapse into giving medical ones. When Professor Hawke says “it is impossible to determine if this is a substantial contributing factor”, he is misguided in trying to make such an assessment. However, what he does say is that the recrudescence or the recurrence of the prolapse is contributed to in some way by the work related injury in 2004. Professor Hawke suggests that the original disc prolapse was as a result of the work related injury in 2004 and “could be a predisposing factor to the now evident disc prolapse at the same level.”
23.
The report of Dr Rodney S Allan, found at page 1 of exhibit “A” does not expressly link any causative factor between the presentation of the applicant before him in June 2011 and the work related injury in 2004. He takes the history and notes that the MRI scan does confirm a recurrent disc prolapse at L4/5 and he says this: “Although she does suffer from axial mechanical back pain, I feel that her most appropriate course of treatment, given that the sciatica is her major complaint, would be to perform a repeat microdiscectomy.”
24.
Professor Kiernan, on the other hand gave the opinion that if surgery was undertaken it would not relate to the incident of 12 February 2004, but would relate to the degenerative constitutional changes which have developed in the applicant’s lumbo sacral spine. In considering whether ongoing incapacity or loss is as a result of injury, one needs to look at the causal chain or connection between the incapacity and the injury. If there is a break in that causal chain or if there is a connection which is so attenuated, one might confidently say that the causal chain has been broken. So much is said by the then President of the Court of Appeal, Justice Kirby, in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464.
25.
I think the telling matter in this case is not only the positive view that the presentation the applicant had in 2010 before Professor Hawke was contributed to in some way by the work related injury in 2004, but it is also to do with the MAC in June 2009. In relation to this the medical certificate on the question of ongoing capacity is not conclusive, however it is telling evidence that Dr Mark Burns, in the AMS takes the history based upon the agreed position of the parties that in addition to other body parts the applicant’s lumbar spine as at 6
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June 2009, was as a result of the injury of February 2004. Most tellingly, the doctor takes the history of the incident. He takes the history of the medical treatment, including surgery to the applicant’s lumbar spine and the physiotherapy, together with the need to take antiinflammatory medication. The history taken after the L4 discectomy in August 2004 was as follows: “She reported that her pain and discomfort improved after the operation but did not completely resolve. … Her low back pain and left leg pain greatly deteriorated in the past four years.” (exhibit “A”, page 4). She also recorded present symptoms before Dr Burn as: “The pain radiates down the lateral aspect of the left leg as far as the foot. She has a degree of numbness and tingling present over the lateral aspect of the foot into the calf region with ongoing weakness in the left leg which occasionally gives way.” (exhibit “A”, page 5). 26.
Factually, the ongoing nature of the applicant’s problem with her back is also to be found in her statement at paragraph 4 (exhibit “C”), where she says this: “As a result of this injury I was referred to my treating general practitioner Dr Ian Ferry [sic] orthopaedic surgeon who performed an L4/5 discectomy on 16 August 2004. Such operation improved my pain and discomfort however such did not completely resolve. After the operation I was referred to physiotherapy and conservative type treatment.”
27.
In my opinion, the fact that there was sciatica present which appears now to be her principal concern as revealed by the report of Dr Allan, and the fact that her back did not completely resolve, she suggests strongly that the recurrence of the disc prolapse at L4/5 referred to variously by the doctors as a recrudescence of symptoms, suggests that there is a causal chain between the injury of February 2004 and her current incapacity continues and is unbroken. The fact that the discectomy at L4/5 provides support for the opinion of Professor Hawke that it “could be a predisposing factor to the now evident disc prolapse at the same level.”
28.
Accordingly, I find that the applicant’s current condition in her lumbar spine is as a result of the injury of February 2004. I refer to the Registrar for her to have an assessment made by an AMS as to whether the surgery as suggested by Dr Allan is “reasonably necessary” in accordance with the terms of s 60(5) of the 1987 Act.
29.
The respondent will pay the applicant’s costs as agreed or assessed. To those costs I provide an uplift of 25 per cent on the grounds of complexity available to both parties. The grounds the complexity are available to both parties is on the basis that the respective legal representatives of the parties had to examine quite closely medical history going back to 2004 with competing medical opinion needing to be weighed and analysed.
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