Asmus v Woolworths Group Limited [2022] NSWPIC 29 (24 January 2022)

Last Updated: 3 February 2022

STATEMENT OF REASONS

BACKGROUND

1. Sonia Asmus (the applicant) was employed by Woolworths Group Limited (the respondent) on a part-time basis from late 2017. She worked on night fill, stocking shelves.

2. Ms Asmus claims she suffered injury to her lumbar spine as a result of repetitive, heavy lifting, and pushing and pulling heavy stock. Alternatively, she claims injury by way of aggravation, acceleration, exacerbation and or deterioration of a disease as a consequence of the nature and conditions of her employment. The deemed date of injury is 24 February 2021.

3. Ms Asmus claims compensation pursuant to the Workers Compensation Act 1987 (the 1987 Act) for weekly payments from 10 August 2021 and continuing, and medical expenses including the cost of, and associated with, stage one and two fusions of her lumbar spine proposed by Dr Bhasham Singh.

4. The respondent denies liability to compensate Ms Asmus. By dispute notices issued on 10 August 2021 and 21 September 2021, the respondent asserts that Ms Asmus did not sustain injury arising out of or in the course of her employment, that her employment was not a substantial contributing factor to any injury, that she had no partial or total incapacity as a result of the workplace injury, and that any medical or related treatment was not reasonably necessary as a result of a workplace injury.

5. The respondent maintains that Ms Asmus is suffering from a degenerative lumbar spinal condition which is unrelated to her employment. The respondent does not dispute that the proposed surgery proposed by Dr Singh is reasonably necessary treatment for Ms Asmus’ lumbar spine but denies that any need for treatment is as a result of a workplace injury.



ISSUES FOR DETERMINATION

6. The parties agree that the following issues remain in dispute:

(a) whether Ms Asmus suffered injury to her lumbar spine arising out of or in the course of her employment with the respondent;

(b) whether she is entitled to weekly compensation from 10 August 2021 as a result of her employment with the respondent, and

(c) whether the treatment proposed by Dr Singh is reasonably necessary as a result of her employment with the respondent.

PROCEDURE BEFORE THE COMMISSION

7. Parties attended a conciliation/arbitration hearing by telephone on 16 December 2021. Ms Asmus was represented by Ms Eraine Grotte counsel, instructed by Ms Basema Elmasri. The respondent was represented by Mr Tom Grimes of counsel, instructed by Mr Daniel Wilkins.

8. 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

9. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attached documents;

(b) Reply and attached documents, and

(c) Application to Admit Late Documents (AALD) lodged on behalf of Ms Asmus on 8 December 2021 and attached documents.

Oral evidence

10. Neither party sought leave to adduce oral evidence or do cross-examine any witness.



Ms Asmus’s evidence

11. Ms Asmus provided a written statement dated 22 September 2021^[1] in which she states:

1. she was employed by Woolworths from late 2017. She worked approximately 15 hours a week. She ceased employment around June 2021 as a result of her injury,

2. her duties involved “constant and repetitive heavy lifting, pushing and pulling of stock” including restocking shelves, manoeuvering stock-filled cages, breaking down loads from pallets, facing shelves, and restocking items such as pasta, pasta sauces, oils, noodles and a range of products of various sizes. She often had to stand on her toes to reach up to restock heavy items on top shelves, and she had to bend onto her knees to reach bottom shelves. Both caused a lot of strain on her back and she often went home in pain after shifts,

3. during a busy period in December 2020 and January 2021, she worked approximately 15 to 25 hours per week. She had to undertake “constant lifting, pushing, manoeuvering of cages, squatting, flexing, pulling and prolonged standing”,

4. over a number of weeks in January and February 2021, her back pain progressively worsened and deteriorated. She developed lower back pain and right leg pain with numbness in her right foot. She attributes the pain that developed at this time to the increased workload and working hours she was doing,

5. on a number of occasions from February to April 2021, she was sent home early because of the pain she was in. The first occasion was around early to mid-February 2021, when her manager at the time, Josh, saw that she was in pain and asked if she needed to leave early,

6. around February 2021, she consulted her general practitioner, Dr Hugo Ho, who referred her for an MRI which revealed an injury to her lumbar spine. He prescribed Lyrica and reduced her workload by providing her with a standard medical certificate. Her manager asked her what she was capable of doing and Ms Asmus suggested duties at the service or checkout. She used approximately two weeks of her annual and sick leave entitlements until a suitable shift was identified,

7. around March 2021, she managed to do five to six shifts in the service department area where she could sit between serving customers to relieve some of the pressure on her lower back. Around April 2021, the service manager expressed her annoyance and frustration at having to look after and accommodate injured employees from another department,

8. on 25 April 2021, the service manager advised her she was no longer required and she was to go back to her pre-injury duties. She moved and undertook a “facing” role manoeuvering stock from the back to the front of the shelf which required extending her lower back and caused further pain,

9. in May 2021, her then manager saw she was in pain and asked if she wanted to leave early. On another occasion, she asked to leave early and was allowed to,

10. on 29 June 2021, she consulted Dr Lim of Workers Doctors who certified her unfit for work. He arranged for her to see a physiotherapist and referred her to orthopaedic surgeon. She first saw Dr Singh in July 2021,

11. her doctors recommended she exhaust all conservative treatment before undertaking surgery. Physiotherapy in July 2021 did not provide any relief. A number of sessions of acupuncture since February 2021 provided temporary relief but the pain worsened. Lyrica caused side-effects and she stopped taking it and currently relies on nurofen,

12. Dr Singh believes she has exhausted all appropriate options and recommends an L5/S1 decompression and fusion. She wishes to undergo the surgery as she can no longer tolerate the pain and believes it is the only option left to her, and

13. she has not returned to work in any capacity due to the constant pain and discomfort she is in. She has difficulty managing day-to-day activities and is in significant pain after attending to housework for long periods. She is unable to stand, sit or walk for long periods without pain and discomfort. She cannot stand in the same position for long periods and cannot walk for long without significant back pain.

Statements of the respondent’s employees

12. The respondent has submitted statements dated 2 July 2021 from employees Megan Lewis, Jacob Pollard and Cherie Borthistle.^[2]

13. Ms Lewis states that she is the store manager. She became aware that Ms Asmus had presented a “general certificate” in February [2021] when Ms Borthistle, who was her line manager, asked if they could meet with Ms Asmus. The certificate indicated she was not fit for work for a period and there were restrictions on her return. At no point was this reported as a workplace injury. Ms Asmus was a valued employee and suitable duties were found for her on checkouts and “facing the store”.

14. Ms Lewis states that they believed they were doing the right thing by Ms Asmus as “it was a general certificate and no Pulse incident had been recorded”. Ms Lewis states that “Sonia also mentioned that she worked with her husband in the lawnmowing business”.

15. Mr Pollard states that he is the assistant store manager. He became aware in March [2021] that Ms Asmus had met with Ms Lewis and Ms Borthistle to discuss her capacity for work following restrictions placed by her doctor due to a degenerative disease affecting her back. He understood this was a non-work related issue and there was no history of an incident recorded in Pulse. Ms Asmus is a good worker and she was offered suitable duties.

16. Mr Pollard states that Ms Asmus worked in the customer service area from March through to May [2021] but the area did not have the hours available for her to work there permanently and she returned to work in night fill completing “presentation duties” only. He had conversations with Ms Asmus to ensure she was following her restrictions and she said she would speak with Ms Borthistle if she needed to take a break. Since returning to night fill duties, she had regularly been unable to attend work because of her back pain. She told him she was on medication and exploring treatment options.

17. Mr Pollard states that he first became aware that Ms Asmus believed that her condition was as a result of her workplace duties when he read her claim. In conversation with her line manager, it had come to his attention that she had always had this back condition which was only treatable by surgery that was not recommended on account of her age.

18. Ms Borthistle states that she is the night fill manager. In early March [2021] Ms Asmus spoke to her and the store manager following a visit to her doctor. She explained she had an existing back injury and would no longer be able to work in night fill. She asked for work in “service” which she undertook for a while until work was no longer available for her in that area. She then did “presentation of the store” for a while, meaning stocking the shelves at waist height, and not the top or bottom shelves.

19. Ms Borthistle states that she has never done a Pulse report for Ms Asmus because she has never said she had been injured at work. Ms Asmus’ email with the WorkCover certificate was the first Ms Borthistle heard that she believed her condition was a direct result of her work at the store. Ms Asmus said her doctor believed she had had her condition for a long time but she could not pinpoint when it might have happened. Her doctor also said she was too young for surgery.

20. Ms Borthistle states that Ms Asmus “also has or had a lawn care business which is a physical role as well, along with coaching and playing netball.” The last she heard, Ms Asmus was consulting a second doctor, after which she submitted the WorkCover certificate.

Dr Ho

21. Dr Ho’s clinical records date from 14 April 2010. On 24 February 2021, he recorded that Ms Asmus saw him with right lower back pain radiating to her heel, of one month’s duration; acupuncture was not helping. He referred her for an MRI and provided a medical certificate.^[3]

22. The certificate stated Ms Asmus had been unwell with “a medical condition” and was unfit for work on 23 February 2021 after which she should be able to return to normal activities.^[4]

23. On 3 March 2021, Dr Ho noted that the report of the MRI undertaken on 26 February 2021 showed:

“Degenerative disc disease at L5/S1 as described plus moderate right facet joint arthropathy/hypertrophy are contributing to severe right neural exit foraminal narrowing and impingement of the exiting right L5 nerve root.

Consider CT-guided perineural injection for symptom relief.”^[5]

24. Dr Ho recommended a CT-guided injection to the right L5 nerve root and prescribed Lyrica.^[6] He provided Ms Asmus with a medical certificate stating she had degenerative lumbar disc disease at L5S1 level and was unfit for her current duties; she would be fit for suitable work duties from 3 March 2021 with restrictions of lifting less than 5kg minimal bending, and no strenuous pulling and pushing.^[7]

25. On 18 May 2021, Dr Ho noted “persistent low back pain”. He noted that “work put her at service desk but now no job available there so she walks up and down doing shelf facing of products” which led to more pain. He noted “improved” after one week off work. He noted Ms Asmus had still not proceeded with a steroid injection which he “highly recommended”.

Dr Lim

26. Dr Lim’s clinical records show that he first saw Ms Asmus on 25 June 2021 by telehealth. She reported a back injury at work on 24 February 2021 due to repetitive heavy lifting and pushing and pulling stock in the setting of years of physical work. He noted she had seen Dr Ho on 24 February 2021 due to increasing back pain. She continued to work on full duties for a few months which further aggravated her lower back pain. She was given alternative duties for two weeks then moved back to restocking shelves which aggravated her pain. Dr Lim noted that she was totally unable to work.

27. Dr Lim concluded that Ms Asmus suffered a back injury with a diagnosis in terms of the MRI due to the nature of her work. He referred her for physiotherapy and to Dr Singh, and certified her as having no current capacity for any work from 29 June 2021 to 20 July 2021 on account of “back injury due to repetitive heavy lifting, pushing and pulling of stock ... in the setting of years of physical work”.^[8]

28. On 13 July 2021, in what appears to be a report to the insurer, Dr Lim wrote that Ms Asmus had ongoing lower back pain. She had physiotherapy twice a week. She was to see Dr Singh on 15 July 2021 after which her capacity for work would be clearer. He noted her symptoms of lower back pain radiating down the right leg with pins and needles, and trouble sleeping. He certified her unfit from 13 July 2021 to 24 August 2021.^[9]

29. On 27 July 2021, Dr Lim noted that Ms Asmus had ongoing low back pain. She had seen Dr Singh who recommended fusion. She had been reviewed by a physiotherapist but was not recovering. He certified her unfit from 27 July 2021 to 14 September 2021.^[10]

30. On 10 August 2021, Dr Calvache-Rubio at the same practice saw Ms Asmus by telehealth. He recorded “severe lower back pain” was which referred to her right leg. He noted “raised concerns to GP and supervisors which were disregarded”. (Ms Asmus has not made this claim and it is not suggested in any other evidence.) He certified her unfit to 14 September 2021.^[11]

31. On 28 August 2021 Dr Calvache-Rubio certified Ms Asmus unfit from 24 August 2021 to 26 October 2021.^[12] On 21 September 2021 he certified her unfit to 23 November 2021.^[13]

Dr Singh

32. Dr Singh saw Ms Asmus on 13 July 2021, 11 August 2021 and 12 August 2021. He reported to Dr Lim on 11 August 2021 and 12 August 2021.

33. On 11 August 2021^[14], Dr Singh reported that Ms Asmus had sustained an injury in the workplace when packing shelves; she had acute back pain which had progressively increased, and right leg and foot pains. She been unable to work and had difficulty managing day-to-day activities. She had symptoms of radiculopathy in the S1 distribution on the right side and the MRI revealed disc extrusion at L5/S1 with loss of disc height.

34. Dr Singh said Ms Asmus had significant structural pathology in the lumbar spine. Her symptoms had not responded to conservative treatment. Given ongoing symptoms more than seven months after injury, treatment options included ongoing analgesia, physiotherapy and injection, or the surgical option of L5/S1 decompression and fusion. He recommended surgery.

35. On 12 August 2021, Dr Singh reported that he had reviewed Ms Asmus via telehealth.^[15] He referred to her duties, her symptoms over the previous seven to eight months, and the MRI which revealed an L5/S1 disc herniation with impingement “commensurate with the mechanism of injury as described” and with her symptoms. She was asymptomatic before “this incident” and he believed her work tasks involved physical stresses which had caused injury to her lumbar spine especially at the L5/S1 disc which ruptured, resulting in neurological impingement.

36. On 28 August 2021, Dr Singh reported to Ms Asmus’ solicitors.^[16] He referred to the history taken from her and confirmed his diagnosis of acute disc injury at L5/S1 disc protrusion with neurological impingement and sciatica. He said she did not have any capacity for work for the foreseeable future as a result. She was asymptomatic before the injury. Her employment was a substantial contributing factor to her injury.

37. Dr Singh disagreed with Dr Raymond Wallace’s assessment (see below). He also disagreed with the assessment by Dr Hall [sic: appears to mean Dr Ho] that Ms Asmus had degenerative disease of the lumbar spine with disc bulging and foraminal impingement. His reasons were, firstly, that he did not expect her to have degenerative lumbar disease at her age. Secondly, she was “asymptomatic before her work-related injury of repetitive heavy lifting and bending while stacking shelves.”

38. Dr Singh said he did not believe the disc injury shown on the MRI was a pre-existing condition. In his opinion, she had a “person injury [sic] arising out of or on [sic] the course of her employment” with the respondent. Her employment was a substantial contributing factor to the injury and her current condition.

39. With respect to Dr Wallace’s opinion that Ms Asmus would have noted the onset of lumbar symptoms around the same time regardless of her employment, Dr Singh reiterated that there was no evidence to suggest she had a degenerative disc disease at L5/S1 and, moreover, she was previously asymptomatic. He said:

“Even if there may have been some degeneration at L5/S1 which is unlikely, I believe that her injury certainly caused an aggravation, acceleration and deterioration of this disease. As I have said before, she had no symptoms and no imaging prior of the injury, and the mechanism of injury is commensurate to lower back injury and she became symptomatic after this injury therefore I believe that her employment has been a major contributing factor to her current condition.”^[17]

40. Dr Singh considered that the large disc extroversion at L5/S1 was unlikely to occur spontaneously. He reiterated his reasons for recommending surgical intervention.

41. Dr Singh provided a supplementary report dated 3 December 2021 in response to Dr Wallace’s opinion that Ms Asmus’ lumbar condition was due to constitutional, pre-existing degenerative pathology unrelated to her employment.^[18] Dr Singh said she had a disc extrusion following night fill work. She was asymptomatic prior to this injury. Her employment was the main contributing factor to her condition.

42. Dr Singh said there was no evidence of any pre-existing degenerative lumbar spinal pathology and there was “certainly no constitutional origin to her current problem”. He did not expect at her age that Ms Asmus would have degenerative spinal pathology. He said work “may have resulted in an aggravation, exploration [sic] and exacerbation of any previously asymptomatic underlying condition.” He did not believe her current condition would have occurred without her workplace injury.

Dr Khong

43. Dr Peter Khong, neurosurgeon and spine surgeon, saw Ms Asmus for assessment by video conference on 25 August 2021 and provided a report of the same date.^[19]

44. Dr Khong took a history that Ms Asmus had done night fill duties for three years; her duties involved stacking shelves, and “facing products” and she often had to stand on her “tippy toes” to reach the upper shelves, and get on her knees to reach the lower shelves. She started to experience right-sided back and leg pain around the end of January and early February 2021 which became progressively worse.

45. Dr Khong noted that Ms Asmus saw Dr Ho, that she had an MRI and was put on light duties. After two weeks leave, she did six shifts on checkouts then was told to return to night fill. Every time she did a shift she would have severe pain that night. She called in sick for multiple shifts. She could not tolerate Lyrica. She was unable to continue due to severe pain. She last worked on 13 July 2021.

46. Dr Khong said he was unable to examine Ms Asmus due to Covid-19 lockdowns but he observed her via video conference. He noted the findings on the MRI. He diagnosed severe right-sided lower back pain and right leg pain and said she “likely describes right L5 radicular pain +/- radiculopathy due to degenerative disease at L5/S1 and right-sided foraminal stenosis causing severe compression of the right L5 nerve root.” He said her work “may have accelerated the degenerative changes in her lumbar spine, and she had an acute exacerbation in January/February this year.”^[20]

47. Dr Khong recommended a right L5 perineural injection but said that, ultimately, Ms Asmus was likely to require an L5/S1 decompression and fusion. She was currently unfit for work.

48. With respect to Dr Wallace’s opinion that Ms Asmus would have noted the onset of lumbar spinal symptoms at the same time regardless of her employment, Dr Khong said it was impossible to know if or when she would have otherwise become symptomatic; many people are asymptomatic despite degenerative changes and neural decompression on imaging. It was possible, if she was not performing filling work requiring constant lifting, stacking, bending and manual labour, she may have never developed a severe and persistent pain.

49. Dr Khong said it was likely Ms Asmus experienced an acceleration of the degenerative changes in her lumbar spine as a result of her duties. She also likely experienced an acute exacerbation at the time she reported worsening pain. She remained incapacitated by pain as a result of her injury.

50. Dr Khong considered the treatment Ms Asmus had had to date was reasonably necessary as a direct consequence of her workplace injury, as was the surgery proposed by Dr Singh. He said she had been debilitated by persistent and worsening pain over seven months which significantly affected her quality of life. She had exhausted all non-operative management options. An injection might offer some transient relief but was not likely to give her significant or sustained relief.

51. In a supplementary report on 4 November 2021^[21] Dr Khong said he disagreed with Dr Wallace’s opinion that Ms Asmus’ employment had not materially contributed to the need for surgery. He said:

“Ms Asmus’ employment involves repetitive manual labour, stacking shelves, lifting, reaching up and bending on her knees. Her work likely caused an acceleration of the degenerative changes in her lumbar spine, as well as an acute exacerbation. Had it not been for her employment, she may not of [sic] experienced pain necessitating a fusion. Her employment has made a material contribution to her need for surgery.”

52. As to Dr Wallace’s opinion that Ms Asmus’ degenerative condition was unrelated to her employment, and as to whether she had sustained injury by way of aggravation, acceleration, exacerbation or deterioration of a disease as a consequence of the nature and conditions of her employment, Dr Khong’s opinion was clearer. He stated she had “both an acceleration and exacerbation”. Somewhat confusingly, he then reiterated his opinion that her work as a night filler “may” have caused an acceleration of the degenerative changes. He stated that earlier in 2021, her work caused an exacerbation.

53. Dr Khong said regardless of whether or not true radiculopathy was diagnosed on clinical examination, Ms Asmus described severe lower back pain and right L5 radicular pain due to her lumbar spine pathology. Surgery was likely to be effective and would be accepted by medical experts as appropriate.

Dr Wallace

54. Dr Wallace saw Ms Asmus for assessment by telehealth on 3 August 2021.^[22] He reported that, in 2021, she was employed on a casual basis for 10 hours a week and usually worked between 20 and 25 hours per week. He described her duties including lifting cartons of stock weighing up to 15kg each.

55. Dr Wallace took a history that, in early February 2021, Ms Asmus noticed a gradual onset of pain at the lumbar spine radiating to her right buttock and down her right leg to her ankle. She “noted no history of workplace injury at the time of symptom onset”. He noted that Dr Ho sent her for an MRI and had diagnosed degenerative disc disease at the L5/S1 level, and had recommended she continue part time work with a lifting restriction. He took a history that, following her return to night fill duties around May 2021, she worked three shifts. He noted that she saw Dr Lim on 25 June 2021 and was certified unfit for work.

56. Ms Asmus denied any history of injury or episodes of lumbar pain before the onset of symptoms in February 2021. Dr Wallace noted her present complaint of constant aching pain radiating to her right buttock down her leg which was worse when lifting overhead, walking or prolonged sitting or standing, and which was relieved by lying flat with her knees raised.

57. Dr Wallace noted the report of the MRI. He diagnosed spontaneous onset of lumbar spinal pain on 24 February 2021 on a background of pre-existing degenerative disc disease at L5/S1 with irritative right L5 radiculopathy which was non-work related.

58. As to causation, Dr Wallace said there was no objective medical evidence that Ms Asmus suffered any work-related injury to the lumbar spine while employed by the respondent. She had a spontaneous onset of lumbar pain in February 2021 without a history of work injury.

59. Dr Wallace noted that Ms Asmus did not submit a workers compensation claim until 2 July 2021. There was no previous history of work-related injury or pain during her employment, the nature and conditions of which were not consistent with causing any significant lumber spinal condition. The MRI showed evidence of significant degenerative disc disease which was constitutional in origin and unrelated to her employment, and which would have been present for some years prior to February 2021. Her condition had not been aggravated or exacerbated by her employment.

60. Dr Wallace concluded that Ms Asmus’ employment with the respondent was not a substantial contributing factor or the majn contributing factor to any current number spinal condition and she would have noticed the onset of symptoms about the same time or same stage of her life had she not been at work or employed by the respondent.

61. In respect of Ms Asmus’ capacity for work, Dr Wallace said she would currently not be fit for activities requiring repeated bending and twisting of the lumbar spine, sitting or standing in one position for prolonged period, or repetitive lifting above 7.5kg. She was fit to return to work her contracted hours of 10 hours a week at light duties within these restrictions. She did not require treatment or medical review for any work-related condition.

62. In supplementary report dated 25 October 2021^[23], Dr Wallace he said he was unable to say whether the surgery proposed by Dr Singh was reasonable and necessary without reviewing Ms Asmus and conducting a clinical examination which was not possible when he saw her in July 2021. He maintained his opinion that there was no objective medical evidence of any work-related injury and it followed that the proposed surgery was not necessary as a result.

63. Asked whether Ms Asmus’ employment had materially contributed to her need for surgery, Dr Wallace said it did not; her condition was due to pre-existing degenerative lumbar spinal pathology which was constitutional in origin and unrelated to her employment.

Employment records

64. Ms Asmus’ pay slips from 1 June 2020 are in evidence.^[24] They show that she usually worked around 10 hours per week.^[25]

65. In the week 30 November 2020 to 6 December 2020, Ms Asmus worked 20.01 hours.^[26] In period leading up to 24 February 2021, she worked 15 hours in the weeks 11 to 17 January 2021^[27] and 25 January 20 31 January 2021^[28]; 20 hours in the week 18 to 24 January 2021^[29] and, in all other weeks, 10 hours, or just over.

SUBMISSIONS

66. Counsel’s submissions are recorded and the transcript is available. The following is a summary.

The applicant’s submissions

67. Ms Grotte makes the following submissions:

1. Ms Asmus has given evidence about the hours she worked from 2017 while employed by the respondent and the repetitive nature of her duties which caused a strain on her lumbar spine, often meaning she went home in pain.

2. In the period just before she consulted Dr Ho about her lumbar spine, Ms Asmus was undertaking more work than usual. The evidence is that her pain worsened in January and February 2021 and she developed significant pain and numbness.

3. The absence of reference to her employment in Dr Ho’s notes on 24 February 2021, and his records generally, is not determinative and it is not fatal to Ms Asmus’ claim: Mason v Demasi.^[30] His notes show that she had been managing her pain with acupuncture; it was only later when an analysis of her duties was done by Dr Singh that the causal link to her employment was made.

4. The degenerative disease with severe foraminal narrowing and impingement of the nerve root seen on the MRI was consistent with Ms Asmus’ complaint of radiating pain in her right leg. On 18 May 2021, she was complaining of persistent lower back pain and Dr Ho’s notes refer to her current duties.

5. There is no challenge from Ms Asmus’ managers to her description of her duties, only that she did not tell anyone initially that her pain was related to her duties and no Pulse record was made.

6. The managers’ evidence does not assist the respondent. Ms Lewis’ reference to Ms Asmus working with her husband in his lawnmowing business suggests I could infer there were other causes for her back pain but the statement is insufficient evidence from which to draw any inference and should be given very little weight. Mr Pollard states that it had come to his attention that Ms Asmus had always had a back condition but there is no evidence of any such problem in the clinical notes dating from 2010. Ms Asmus did not report the injury as work-related but her doctors nevertheless found it to be so. The fact she was put on light duties indicates they were likely to cause problems.

7. The MRI does not show evidence of extensive pre-existing changes in Ms Asmus’ lumbar spine, only of severe narrowing at L5/S1.

8. Dr Khong took a history of Ms Asmus’ duties, the repetitive nature of which he considered likely caused an acceleration and acute exacerbation within the meaning of section 4(b)(ii) of the 1987 Act. While he thought the duties may have caused an acceleration, he was clear that they did cause an acute exacerbation. He did not use the language of “main contributing factor” but, in effect, that is what he found.

9. There appears to be some internal inconsistency in Dr Singh’s opinion in that he found no evidence of pre-existing pathology but, even if there was, there was “certainly” an aggravation, acceleration and deterioration of this disease. In saying Ms Asmus had a “person” injury, he appears to be trying to address the legal issue. However, it seems reasonably clear that he considered the disc extrusion was caused by Ms Asmus’ duties over three years.

10. Against Dr Wallace’s view that Ms Asmus would have developed symptoms regardless of her employment, Dr Khong says it is impossible to know, and possible she may never have developed symptoms.

11. The evidence supports the conclusion that Ms Asmus’ duties caused the disc extrusion or that she had some degeneration in her lumbar spine, the main contributing factor to the aggravation of which was the nature and conditions of her employment..

12. Dr Wallace was unable to examine Ms Asmus. Moreover, there is no real basis for his diagnosis of pre-existing condition. He refers to her duties in some detail then simply states they were not causative of injury, without any real analysis. His opinion is a bare ipse dixit. He seems to consider her employment was not the main contributing factor because she did not report injury. I would give more weight to Dr Singh, who is the treating surgeon, and to Dr Khong, than to Dr Wallace.

The respondent’s submissions

68. Mr Grimes makes the following submissions:

1. Ms Asmus’ statement that she worked approximately 15 hours a week and that her duties were “quite labour-intensive” and involved “constant and repetitive heavy lifting, pushing and pulling of stock” is an exaggeration and not a fair characterisation of her duties. She provides no evidence of the weight of any heavier items and no break down of times from which to conclude that she performed “constant, repetitive heavy lifting”. On a common sense view, many, if not most, of the items she lifted would have been very light. She gives no details of the height of the shelves she had to reach up to, or of her own height.

2. The actual hours she worked during January and February when her symptoms increased are documented in her wage records. Mostly, she worked 10 hours a week on non-consecutive days, mostly on Tuesdays and Sundays, at most on three days. She usually worked five hour shifts.

3. Analysis of the pay records shows a very different picture from the 15 to 20 hours per week Ms Asmus claimed to be working in January and February 2021 when she says her symptoms worsened.

4. Careful analysis of Ms Asmus’ actual duties and hours does not support the causal connection claimed and it is very unlikely that the hours she worked and the duties performed would have caused her condition.

5. Ms Asmus has not challenged an alternative likely cause of her condition, being her involvement in her husband’s lawnmowing business.

6. While Dr Wallace was only able to see Ms Asmus by telehealth, the same goes for Dr Lim and Dr Singh, and Dr Khong who saw her by video conference.

7. The history of her claim shows that she saw Dr Ho in February 2021 complaining of back pain for one month but made no mention of work; she was given a medical certificate showing she had degenerative disc disease which made no mention of her work; the statements of her managers show she made no mention of back pain related to her work, and they accommodated her need for alternative duties. Then, on seeing Dr Lim, everything changed. I would not accept Dr Lim’s opinion which unfairly characterises Ms Asmus’ duties as “heavy”, and I would not accept her employment was the main contributing factor to any injury.

8. Dr Wallace and Dr Ho both considered Ms Asmus had degenerative disc disease. She had been in the same job for three years without any symptoms.

9. The respondent makes limited submissions about Ms Asmus’ capacity for employment other than to say that. after the claimed injury, she was capable of suitable “non-facing” and checkout duties; she was fit for the duties she was doing after the onset of her symptoms. Moreover, Dr Lim referred in his notes to her history of eight years in administrative and bookkeeping duties^[31], consistent with Dr Wallace’s opinion that she could undertake suitable duties.

10. Considering the factors in section 32A of the 1987 Act, I would be comfortable in finding that Ms Asmus has capacity for employment and for earning more as a bookkeeper then she did in her employment with the respondent.

Submissions in reply

69. In reply, Ms Grotte submits:

1. Ms Asmus’ treating surgeon and general practitioner consider she has no capacity employment.

2. Work as a bookkeeper would mean sitting for long periods. Ms Asmus has back pain and leg pain; she cannot take Lyrica because of the side-effects, and her symptoms have not responded to other treatment. She has been unable to return to work on account of constant pain and discomfort. She is unable to stand, sit or walk for long periods due to pain. She may have experience as a bookkeeper but the reality is she cannot do the job because of her injury.

3. There is no expert opinion about the hours she worked, only submissions that her hours and duties could not have resulted in injury. Ms Asmus’ payslips support her claim about the hours she worked leading up to 24 February 2021. There is no dispute by her managers as to the nature of her duties; she was pushing cages full of stock; the respondent cannot simply say her duties would not cause her injury.

4. Her employer recognised that her pre-injury duties were unsuitable and gave her alternative duties.

FINDINGS AND REASONS

70. Section 4 of the 1987 Act defines “injury” as follows:

“In this Act--



"injury" --

(a) means personal injury arising out of or in the course of employment,

(b) includes a

"disease injury", which means—

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

71. Ms Asmus bears the onus of establishing, on the balance of probabilities, that she suffered the injury she claims, that she has the incapacity she claims as a result of her injury and that the proposed medical treatment is reasonably necessary as a result of her injury. I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland^[32] and Nguyen v Cosmopolitan Homes^[33].

72. The legal test of causation was described by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates^[34] as follows:

“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”

73. There is a divergence of views as to whether Ms Asmus had pre-existing degenerative disease in her lumbar spine, and as to the nature of the injury found by her doctors.

74. It is not entirely clear from Ms Asmus’ statement whether she says she had any symptoms of back pain prior to January 2021. At paragraph 8, she describes her duties and says they caused a lot of strain on her back and she often went home in a lot of pain after shifts. She describes how her back pain “progressively worse than deteriorated” throughout January and February 2021 while undertaking longer shifts.

75. I do not understand the respondent to say that Ms Asmus was previously symptomatic, and the histories taken by her doctors and by Dr Wallace indicate that she was not. Dr Ho had been her general practitioner since 2010. There is no evidence in his clinical records of lower back pain prior to 24 February 2021. In this context, I understand Ms Asmus’s evidence to refer to the period around January and February 2021, not to symptoms before then.

76. As to whether Ms Asmus had pre-existing degenerative changes in her lumbar spine, Dr Singh appears to be on his own in his opinion that she did not.

77. The MRI on 26 February 2021 identified degenerative disc disease, although not for how long it had been present.

78. Dr Ho’s opinion, as recorded in his notes and the medical certificates he provided, is that Ms Asmus had degenerative lumbar disc disease at L5/S1, consistent with the MRI.

79. Dr Lim did not comment directly on whether Ms Asmus had a pre-existing degenerative condition but he made a diagnosis by reference to the MRI, suggesting that he considered she had a pre-existing degenerative condition.

80. Dr Khong considered that Ms Asmus’ lower back pain and right L5 radiculopathy was due to degenerative disease which may have been accelerated by her work. In his opinion, she had an acute exacerbation in January/February 2021 as a result of her employment.

81. Dr Wallace considered Ms Asmus had a spontaneous onset of lumbar spinal pain on a background of pre-existing degenerative disc disease, unrelated to her employment.

82. Dr Singh concluded that Ms Asmus did not have pre-existing degenerative lumbar disease, or that it was “unlikely”. He gave his reasons, being her young age and that she was previously asymptomatic. None of the other doctors commented on her age but none suggest it was inconsistent with pre-existing degenerative disease, and Dr Khong observed that many people are asymptomatic despite degenerative changes and neural decompression on imaging.

83. I consider that the weight of the medical evidence supports the conclusion that Ms Asmus had pre-existing degenerative disease in her lumbar spine.

84. In reaching this conclusion I place no weight on the statements from Ms Asmus’ managers about any pre-existing condition. Mr Pollard states that he became aware in March that her doctor had placed restrictions on her due to a degenerative disease affecting her back, and it had come to his attention that she had always had this condition. The basis for his understanding is not clear. Ms Borthistle states that Ms Asmus said her doctor believed she had had the condition for a long time but could not pinpoint when it might have happened.

85. As to the nature of any injury, and causation, Dr Ho did not comment. Dr Lim’s records and report are not entirely clear. He recorded that Ms Asmus reported a back injury “at work on 24 February 2021 due to repetitive heavy lifting and pushing and pulling stock in the setting of years of physical work”. He appears to conclude that the “nature and conditions” of her employment caused her injury.

86. Dr Singh’s opinion is not altogether clear but he appears to conclude that Ms Asmus suffered a frank injury (a “person” injury) on or around 24 February 2021 in the form of the disc injury seen on the MRI. He recorded that she reported that she “sustained an injury in the workplace when packing shelves”. He refers to her being asymptomatic before “this incident” and believed her work tasks involved physical stresses which had caused injury to her lumbar spine especially at the L5/S1 disc which ruptured, resulting in neurological impingement. He considered the disc herniation and impingement seen on the MRI were “commensurate with the mechanism of injury as described”.

87. Ms Grottte acknowledged there is some internal inconsistency in Dr Singh’s report and submits that he appears to be trying to report in terms of legal issues. I agree. Dr Singh said there was no pre-existing disease and “certainly no constitutional origin to her current problem”. He then said that, even if there may have been some degeneration at L5/S1 which was “unlikely”, her injury “certainly caused an aggravation, acceleration and deterioration of this disease”. In his supplementary report, he considered Ms Asmus’ employment “may” have resulted in aggravation and exacerbation of a previously asymptomatic underlying condition. While there is internal inconsistency in his report and the “mechanism of in jury” referred to is not clear, I understand Dr Singh’s opinion to be that the back pain Ms Asmus experienced around January/February 2021 was caused by her duties.

88. I do not agree with the submission that Dr Wallace’s opinion should be given less weight because he saw Ms Asmus by telehealth. It appears that all of the doctors saw her by that means, whether by telephone or video. However, I agree that Dr Wallace did not really engage with the evidence.

89. Dr Wallace reported that Ms Asmus noticed a gradual onset of pain at the lumbar spine radiating to her right buttock and down her right leg to her ankle. He said she “noted no history of workplace injury at the time of symptom onset”. He concluded she had a “spontaneous onset of pain on 24 February 2021” which was unrelated to her duties. He found “no objective medical evidence” that she suffered any work-related injury. It is not clear what he thought that evidence might comprise. He did not explain the spontaneous onset of pain in a previously asymptomatic person or why her duties did not, or could not, have resulted in injury. He simply stated that the “significant degenerative disc disease had not been aggravated or exacerbated by her employment.

90. Having reached that conclusion, Dr Wallace found Ms Asmus would currently not be fit for activities requiring repeated bending and twisting of the lumbar spine, sitting or standing in one position for prolonged period, or repetitive lifting above 7.5kg. He considered her fit for 10 hours a week at light duties within these restrictions. It does not follow from this that her duties were causative of injury but it tends to underline the deficiency of reasoning in Dr Wallace’s report.

91. Dr Khong diagnosed severe right-sided lower back pain and right leg pain and said Ms Asmus likely described “right L5 radicular pain +/- radiculopathy due to degenerative disease at L5/S1 and right-sided foraminal stenosis causing severe compression of the right L5 nerve root.” In his first report, he said her work “may have accelerated the degenerative changes in her lumbar spine, and she had an acute exacerbation in January/February this year.” (emphasis added.)

92. In his supplementary report, Dr Khong says both that Ms Asmus’ duties may have caused an acceleration of her degenerative disease and did cause acceleration. However, he is clear that her employment caused an acute exacerbation in January/February 2021.

93. I prefer Dr Khong’s opinion to that of Dr Wallace. Dr Khong said it was impossible to know if or when Ms Asmus would have otherwise become symptomatic, and many people are asymptomatic despite degenerative changes. He related her current condition to her filling work requiring constant lifting, stacking, bending and manual labour, without which, he said, she may have never developed a severe and persistent pain. Her need for surgery was a direct result of her injury. In my view, Dr Khong’s opinion is more careful and measured than Dr Wallace’s.

94. For an injury to satisfy section 4(b)(ii), employment must have been the main contributing. The respondent refers to Ms Lewis’ statement that Ms Asmus had mentioned that “she worked with her husband in the lawnmowing business”. Ms Borthistle also said Ms Asmus

“has or had a lawn care business which is a physical role”, and that she played netball.

95. Mr Grimes submitted that Ms Asmus has not responded to this evidence which suggests an alternative cause for her back pain. However, in my view there is nothing in either manager’s statement to seriously suggest an alternative explanation. Ms Lewis does not appear to know what was the nature of any work Ms Asmus did with her husband, and Ms Borthistle is not clear whether they still had the business.

96. It is true there is no reference in Dr Ho’s records to Ms Asmus’ employment other than the note in May 2021 that her duties had changed. In well-known passages, Basten J in Demasi referred to the difficulties associated with discounting an appellant’s testimony on the basis of apparently inconsistent accounts given to or taken by various health professionals. In Davis v Council of the City of Wagga Wagga^[35] Mason P said experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.

97. Ms Asmus does not claim she told Dr Ho she thought her symptoms were related to her duties. Dr Calvache-Rubio noted that she had “raised concerns to GP and supervisors which were disregarded” but no other evidence supports that statement. However, Dr Ho’s records show that he saw Ms Asmus only twice after 24 February 2021: on 3 March 2021 and on 18 May 2021 when he noted “persistent” back pain. She saw Dr Lim for the first time four months after she first reported back pain to Dr Ho. I accept Ms Grotte’s submission that, despite this gap and the absence in Dr Ho’s records, Dr Singh and Dr Khong considered her pain was related to her duties.

98. The fact that Ms Asmus did not report a workplace injury or even, apparently, mention any connection to any of her managers, is somewhat troubling, given that she went home more than once with back pain. She has not explained why not. However, I do not think this seriously undermines her claim. The period between the onset of symptoms and 29 June 2021 when she saw Dr Lim is not great, and she made her claim on 2 July 2021. I accept that she may not have identified her work as the cause of her symptoms.

99. Mr Grimes submitted that there is no evidence of the weight of the goods that Ms Asmus had to stack, how often she had to lift heavy goods, the height of the shelves she had to reach or, even, her own height. However, as Ms Grotte submitted, there is no challenge by her managers to her account of her duties. The fact that she was given different duties for as long as they could be accommodated, and that Dr Wallace agreed she had to work within restrictions, tends to support her claim, even without the specific details Mr Grimes refers to.

100. Mr Grimes submitted that the respondent’s records show that Ms Asmus did not work the hours she claims in the period leading up to the onset of symptoms. Further, that they show she did not work consecutive shifts. I agree the records do not show that she consistently worked 15 to 25 hours in that period but there were several weeks when she worked more than her usual hours.

101. Dr Wallace noted that Ms Asmus’s contracted hours were 10 hours per week. He noted that, in 2021, she worked 20 to 25 hours a week although that does not appear to be her evidence. Neither Dr Singh nor Dr Khong referred to her hours but it is reasonable to infer that they took a history similar to Dr Wallace. Given those hours, it is reasonable to infer that they took into account that she was not necessarily working consecutive days or shifts.

102. While Ms Asmus’ evidence raises some questions and doubts, applying the common sense test in Kooragang, I am satisfied, on the balance of probabilities, that she had asymptomatic pre-existing degenerative disease in her lumbar spine that became symptomatic around January/February 2021, and that her employment with the respondent was the main contributing factor within the meaning of section 4(b)(ii).

Is the proposed surgery reasonably necessary as a result of Ms Asmus’ injury?

103. Section 60(1) of the 1987 Act provides:

“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 that treatment or service and the related travel expenses specified in subsection (2)”.

104. In Murphy v Allity Management Services Pty Ltd^[36], Deputy President Roche said at [58]:

“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

105. The respondent does not dispute that the lumbar fusion proposed by Dr Singh is reasonably necessary treatment for Ms Asmus’ back condition.

106. Dr Khong considered that the treatment proposed was reasonably necessary “as a direct result” of Ms Asmus’ employment. Dr Wallace’s opinion that the treatment was not reasonably necessary was because he did not consider she had suffered a work-related injury.

107. Having found that Ms Asmus suffered a work-related injury, I find that the treatment proposed by Dr Singh is reasonably necessary treatment as a result of that injury.

Capacity

108. With respect to Ms Asmus’ capacity for employment in period claimed, the respondent submits that she is capable of earning at least as much performing bookkeeping duties, in which she has experienced, as she would if employed by the respondent.

109. There is limited evidence about Ms Asmus’ book-keeping experience but Dr Lim recorded her employment/education history included “admin/bookwork 8 years”. I accept Ms Grotte’s submission that such work is likely to involve sitting for long periods. Ms Asmus has back pain and leg pain for which she can only take nurofen and which has not responded to other treatment.

110. There is no dispute that Ms Asmus suffers persistent back pain. There is no challenge to her evidence about the effects of her pain on her daily activities. Dr Wallace considered she can work a week within restrictions but Dr Lim, Dr Singh and Dr Khong consider she has had no current capacity for employment during the period claimed. I prefer their opinions.

111. I find Ms Asmus is entitled to weekly payments from 10 August 2021. It is agreed that her pre-injury average weekly earnings were $463.56. She is entitled to payment from 10 August 2021 and continuing pursuant to section 37 of the 1987 Act.

^[1] ARD page 1.

^[2] Reply pages 2, 3, 4.

^[3] ARD page 115.

^[4] ARD page 158.

^[5] ARD page 50.

^[6] ARD page 116.

^[7] ARD page 159.

^[8] ARD page 52.

^[9] ARD page 56.

^[10] ARD page 79.

^[11] ARD page 62.

^[12] ARD page 64.

^[13] ARD page 67.

^[14] ARD page 29.

^[15] ARD page 27.

^[16] ARD page 32.

^[17] ARD page 24.

^[18] AALD page 3.

^[19] ARD page 23.

^[20] ARD page 35.

^[21] AALD page 1.

^[22] Reply page 12.

^[23] Reply page 22.

^[24] ARD page 160.

^[25] Some, but not all, describe her ”Standard Working Hours” as 10.00.

^[26] ARD page 194.

^[27] ARD page 196.

^[28] ARD page 210.

^[29] ARD page 208.

^[30] [2009] NSWCA 227 (Demasi)

^[31] ARD page 47.

^[32] [2008] NSWWCCPD 134.

^[33] [2008] NSWCA 246.

^[34] 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

^[35] [2004] NSWCA 34; 4 DDCR 358.

^[36] [2015] NSWWCCPD 49.