Arnold v Hyne & Son Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Arnold v Hyne & Son Pty Ltd [2024] NSWPIC 168
APPLICANT:	Michael Arnold
RESPONDENT:	Hyne & Son Pty Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	5 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for permanent impairment pursuant to section 66, and weekly benefits, as a result of an undisputed injury to the lumbar spine in the course of the applicant’s employment with the respondent, and disputed conditions in the thoracic spine and left and right upper extremities (shoulders) consequent upon the lumbar spinal injury; the lumbar spinal injury required surgery; the condition in the thoracic spine was claimed to result from muscle guarding, and restriction of movement, in the thoracic spine; the conditions in the left and right shoulders were claimed to result from multiples falls experienced by the applicant as a result of the lumbar spinal injury; detailed examination of the treating and qualified medical evidence, along with the applicant’s evidence; finding that the conditions in the thoracic spine and shoulders were consequent upon the lumbar spinal injury; matter referred to a Medical Assessor for assessment of permanent impairment as a result of the injury to the lumbar spine, conditions in the thoracic spine and left and right upper extremities consequent upon the lumbar spinal injury, and scarring (TEMSKI); Held – applicant’s claim for weekly benefits deferred until after issue of the Medical Assessment Certificate and expiration of the appeal period in respect thereof.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a condition in the thoracic spine consequent upon injury to the lumbar spine on 24 May 2018. 2. The applicant sustained a condition in the left upper extremity (shoulder) and right upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018. 3. The applicant sustained a condition in the right upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of: (a) injury to the lumbar spine on 24 May 2018; (b) condition in the thoracic spine consequent upon injury to the lumbar spine on 24 May 2018; (c) condition in the left upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018; (d) condition in the right upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018, and (e) scarring in accordance with the Table for the Evaluation of Minor Skin Impairment (TEMSKI). 5. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 23 January 2024 with the following attachments: (i) Certificate of Capacity of Dr Adeniran dated 6 October 2023; (ii) Certificate of Capacity of Dr Ayodele dated 6 November 2023; (iii) Certificate of Capacity of Dr Ayodele dated 7 December 2023; (iv) Certificate of Capacity of Dr Ayodele dated 8 January 2023; (d) Application to Admit Late Documents dated 13 March 2024 with Certificate of Capacity of Dr Ayodele dated 8 February 2024 attached, and (e) this Certificate of Determination and Statement of Reasons. 6. Determination of the applicant’s claim for weekly benefits is deferred until after the issue of a Medical Assessment Certificate and the expiration of the appeal period thereafter.

STATEMENT OF REASONS

BACKGROUND

Michael Arnold (the applicant/Mr Arnold) seeks weekly benefits, and compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act1987 (the 1987 Act), as a result of injury arising out of or in the course of his employment on 24 May 2018 as a shift co-ordinator with Hyne & Son Pty Limited (the respondent).
On 24 May 2018 the applicant was conducting a “toolbox meeting” when his left leg collapsed and gave way. At that time Mr Arnold immediately felt severe pain in his back, which radiated to his left buttock and down his left leg to his knee. He also experienced pain in his left calf and paraesthesia in the left heel.
The applicant consulted his general practitioner Dr Arya and was referred to Dr Michael Ow-Yang, neurosurgeon, who saw him initially on 9 August 2018. Dr Ow-Yang, after consideration of an MRI scan dated 30 May 2018 requested by Dr Arya, made a working diagnosis of a left L5 and S1 radicular pain secondary to left L4/5 lateral recess stenosis causing left L5 nerve compression and an acute left L5/S1 disc protrusion causing left S1 nerve compression.
On 4 September 2018 the applicant underwent left L5 and S1 periradacular steroid injections under the care of Dr Ow-Yang.
On 12 March 2019 the applicant underwent left L4/5 and L5/S1 laminectomy and rhizolysis and left L5/S1 microdiscectomy under the care of Dr Ow -Yang.
Notwithstanding that treatment Mr Arnold continues to suffer from ongoing symptoms in his back and ongoing left lower limb neuropathic pain symptoms.
The respondent accepts liability for the injury to the applicant’s lumbar spine on
24 May 2018.
The applicant’s claim for permanent impairment compensation is in respect of 26% whole person impairment (WPI) as a result of injury to the lumbar spine on 24 May 2018, scarring as a result of surgery thereon, and conditions in the thoracic spine, left upper extremity (shoulder), and right upper extremity (shoulder) consequent upon the injury to the lumbar spine.
The respondent does not accept liability for any injury to the thoracic spine on 24 May 2018, or for conditions in the thoracic spine, left upper extremity (shoulder), and right upper extremity (shoulder) consequent upon the injury to the lumbar spine.
The respondent’s scheme agent, Employers Mutual NSW Limited (EML) issued to the applicant two notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 17 August 2021[1] and 14 July 2023.[2] In the first of those notices EML denied liability for injury claimed to the thoracic spine on 24 May 2018, and in the second it again denied injury to the thoracic spine, and conditions in the thoracic spine, and bilateral shoulders, consequent upon injury to the lumbar spine on 24 May 2018.
[1] Application to Resolve a Dispute (ARD) p 15, noting that the page numbers in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
[2] ARD p 20.
These denials were based on independent medical examinations of the applicant carried out by Dr Graeme Doig, general orthopaedic and trauma surgeon, on 17 June 2021 and
[3] Reply p 4.
[4] Reply p 14.
30 April 2023, resulting in reports dated 7 July 2021[3] and 4 July 2023.[4]
The “Injury Details – 24/05/2018” in the ARD Form 2 dated 13 December 2023, lodged to commence the proceedings, are as follows:
“On 24 May 2018 the Applicant was conducting a toolbox meeting in the course of his employment when his leg gave way causing him to collapse and sustained injury to his thoracic spine and lumbar spine. As a result of the nature and conditions of the Applicant's work over the many years he worked for the Respondent he was required to be on his feet for prolonged periods and exposed to heavy and repetitive duties. After sustaining injury to his spine the worker has experienced numerous falls as a consequence of his leg giving way and sustained consequential injuries to his left upper extremity and right upper extremity (shoulders).”
As noted hereunder, notwithstanding the particularisation in that description of injury to the thoracic spine on 24 May 2018, the applicant relies on a condition in the thoracic spine consequent upon injury to the lumbar spine of that date, in support of his claim for permanent impairment compensation.
The applicant does not rely on the so called ‘nature and conditions’ of his work with the respondent over many years in support of his current claim.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant suffer a condition in the thoracic spine consequent upon injury to the lumbar spine on 24 May 2018?
(b)    Did the applicant suffer a condition in the left upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018?
(c)    Did the applicant suffer a condition in the right upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018.
(d)    What is the degree of WPI as a result of injury to the lumbar spine on
24 May 2018, scarring as a result of surgery thereon, and conditions claimed in the thoracic spine, left upper extremity, and right upper extremity consequent upon injury to the lumbar spine on 24 May 2018.
In respect of the applicant’s claim for weekly benefits, the parties agreed at the conciliation/arbitration hearing referred to hereunder that any entitlement that Mr Arnold may have to such benefits should await the outcome of an assessment of permanent impairment by a Medical Assessor to whom the applicant is referred by the Commission for such assessment.

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.
The parties attended a conciliation/arbitration hearing on 20 March 2024 conducted via video conference. Mr Goodridge of counsel appeared for the applicant briefed by Mr Kospetas. The applicant attended separately. Mr Doak of counsel appeared for the respondent briefed by Ms McCoy. A representative of EML attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) dated 23 January 2024 with the following attachments:
(i)Certificate of Capacity (COC) of Dr Adeniran dated 6 October 2023;
(ii)COC of Dr Ayodele dated 6 November 2023;
(iii)COC of Dr Ayodele dated 7 December 2023;
(iv)COC of Dr Ayodele dated 8 January 2023, and
(d)    AALD dated 13 March 2024 with COC of Dr Ayodele dated 8 February 2024 attached.

Oral evidence

There was no application to adduce oral evidence, or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which is available to the parties on request. In summary, they are as follows.

Applicant

The applicant refers to [8] of his statement dated 25 October 2023[5] in which he claims, among other things, that he sustained injury to the thoracic spine as a result of his workplace accident. The applicant submits that, while he experienced pain in the thoracic spine on
[5] ARD p 5.
25 May 2018, he does not rely on injury to that part of his spine, of itself, in support of his claim for permanent impairment compensation. He does rely on a condition in the thoracic spine consequent upon the undisputed injury to the lumbar spine he suffered the day of his workplace injury.
The applicant also relies on a significant number of falls that he claims he suffered as a result of injury to his lumbar spine in support of the conditions in his left and right shoulders. Evidence of these falls appears in the clinical notes and medical reports admitted in the proceedings.
The applicant refers to [19], [20], and [21] of his statement dated 25 October 2023, with particular emphasis on the frequency of falls experienced by him because of his leg giving way. The claim by the applicant of the falls he experienced causing injury to his shoulders is referred to in the latest s 78 notice dated 14 July 2023.
The applicant refers to the histories of falls recorded in reports produced by Dr Patrick, general surgeon, dated 11 February 2021,[6] and 14 February 2023,[7] following independent medical examinations of Mr Arnold he conducted on 11 February 2021 and
[6] ARD p 52.
[7] ARD p 65.
13 February 2023.
Dr Todhunter, specialist in anaesthesia and pain medicine, treated Mr Arnold for pain relief and recorded in his report dated 15 December 2021 the “significant number of falls” related to a loss of coordination and strength in the left leg.[8]
[8] ARD p 150.
Similarly, Dr Mackey, injury management consultant who examined the applicant on
[9] ARD p 136/7.
25 June 2020, recorded in his report dated 26 June 2020 the several falls experienced because of ongoing symptoms in the back, especially numbness and loss of power.[9]
The applicant’s treating general practitioner, Dr Ayodele, in his report dated
[10] ARD p 163.
7 November 2022 refers to the giving way of Mr Arnold’s left leg causing frequent falls.[10]
The clinical notes of the Tumbarumba Medical Practice of which Dr Ayodele is a member, are in evidence, commencing with a consultation note recorded by Dr Arya dated
24 May 2018 recording the incident at work on that day when the applicant’s left leg suddenly collapsed.[11] The applicant lists numerous references in those notes dating from
[11] ARD p 167.
19 June 2019 until 22 November 2022 in which there is reference to falls experienced by the applicant.
The applicant refers to the Certificates of Capacity (COCs) in evidence, commencing with the certificate dated 8 March 2021, in which are recorded histories of falls in the context of left leg pain, and the leg giving away.[12] In the COC in evidence dated 12 July 2022 signed by
[12] ARD pp 345 - 395.
Dr Ayodele there is reference dated 25 March 2022 to a trial of a spinal stimulator, two falls in the previous week, consideration possibly being given to a fall clinic referral. In the COC dated 5 August 2022, this is repeated, and in the COC dated 25 October 2022 Dr Ayodele refers to a consultation note dated 22 November 2022 in which the history of a fall the previous Sunday after the left leg gave way is recorded.
The applicant refers to a COC dated 6 November 2023 in which Dr Ayodele records multiple falls experienced by the applicant, and a fall over on two different occasions landing on the shoulders.[13]
[13] AALD dated 23 January 2024 p 7.
In the COC dated 8 February 2024 issued by Dr Ayodele attached to the AALD dated
13 March 2024, there is reference to an attendance on the doctor on 5 February 2024 who recorded of the applicant that he “…is still having bilateral shoulder pain due to the fall he had on his shoulder”.
The applicant submits in summary of this evidence that there is little doubt that he has experienced falls that are related to the accepted injury to his lumbar spine.
The applicant notes that what he seeks is an assessment of the degree of permanent impairment he has suffered as a result of an injury, in accordance with the definition of medical dispute (emphasis in original) in s 319 of the 1998 Act, and that s 66 of the 1987 Act provides for the payment of compensation for permanent impairment as a result of an injury.
The applicant submits that the expert relied on by the respondent has misunderstood the law in respect of compensation for permanent impairment, and that he proceeded on the basis that for compensation to be awarded there had to be permanent impairment sustained as a result of an injury to a body part at the date of injury to that body part. Apart from this misunderstanding, the applicant submits that there is no disagreement between the doctors.
The applicant refers to the report of Dr Doig dated 7 July 2021, and notes the extensive documentation reviewed by the doctor in preparation for that report. The applicant notes what Dr Doig says in answer to question posed to him at (5) on p 6 of the report:
“As far as I am aware, there was no injury to the thoracic spine in the incident on 24 May 2018. Mr Arnold describes his left leg collapsing with a sudden onset of lower-back pain and subsequent left-leg symptoms. Mr Arnold did demonstrate restricted movement through the thoracic spine on rotation, however this is secondary to his lumbo-sacral problem.”
The applicant notes the doctor’s answer to question (6):
“There was no evidence that the thoracic spine was injured in the incident of
24 May2018.”
The applicant refers to Dr Doig’s report dated 4 July 2023 in which he says the following in respect of the thoracic spine:
“He could only forward flex to his knees with 10 degrees of lateral flexion and 5 degrees of spinal extension. Thoracic rotation was restricted due to lower-back pain.”[14]
[14] Reply p 19.
Dr Doig says at [3.1(e)] of that report:
“There is no evidence Mr Arnold suffered an injury to his thoracic spine. Mr Arnold’s thoracic restrictions are as a result of his lower-back condition. He was directly questioned as to the cause of his restricted thoracic rotation and Mr Arnold stated this was due to lower-back pain.”,
and at [3.1(g)]:
“There has been no injury to the thoracic spine. Any functional restrictions are secondary to the lower-back pathology.”[15]
[15] Reply p 20.
The applicant submits that Dr Doig is conflating the concept of injury in the thoracic spine with that of condition in the thoracic spine consequent upon injury to the lumbar spine, also noting in passing that an incorrect date of injury “24 May 2021” is specified in the question at [3.1(e)].
The applicant submits that Dr Doig made the same error in respect of the conditions in the conditions in the upper extremities (shoulders) consequent upon the injury to the lumbar spine. The doctor deals with any apparent injury to the left and right shoulders at [3.1(k) – (v)] of the report dated 4 July 2023 when he states that, as far as he is aware, Mr Arnold did not suffer an injury on 24 May 2018 to either his left or right shoulder. The doctor does concede that the applicant may have suffered an injury to the right shoulder and the right shoulder as a result of recurrent falls, but those matters needed to be clarified with the treating general practitioner. Dr Doig did say that, as far as he was aware, no imaging had been undertaken on the shoulders to clarify any underlying pathology.
The applicant notes that the treating pain specialist, Dr Todhunter, gives some support for the applicant’s case in respect of consequential conditions in the thoracic spine and bilateral shoulders.

Respondent

The respondent submits that Dr Doig, in giving his opinion, was obliged to consider the matter in the way in which it was presented to the Commission for determination.
The respondent refers to the (original) letter of claim to EML dated 20 April 2021[16] containing a claim for lump sum compensation based on the two reports of Dr Patrick dated
[16] ARD p 32.
[17] ARD pp 52 and 65.
11 February 2021.[17] In his supplementary report dated 11 February 2021, Dr Patrick assessed permanent impairment in respect of the thoracic spine, lumbar spine and skin (scarring) for a total of 19% WPI.
The respondent submits that there was no clearly identified allegation of consequential loss at that stage.
The respondent submits that it was not until “the heel of the hunt” that the (amended) claim for lump sum compensation was made on EML on 1 March 2023,[18] based on two reports of Dr Patrick dated 14 February 2023.[19] In his supplementary report dated 14 February 2023, Dr Patrick assessed permanent impairment in respect of the thoracic spine, lumbar spine, right upper extremity (shoulder), left upper extremity (shoulder), and skin (scarring) for a total of 26% WPI.
[18] ARD p 35.
[19] ARD pp 67 and 72.

The respondent submits that it was endeavouring to deal with a vast amount of material, and that the reports of Dr Doig must be considered in respect of two possible presentations of the applicant’s case. These are, in respect of the thoracic spine, a frank injury to the thoracic spine on 24 May 2018, and a condition in the thoracic spine consequent upon injury to the lumbar spine on that date.
The respondent submits that Dr Doig, in his report dated 4 July 2023, responds to these two alternate scenarios.
The respondent submits that the ARD postdates the second report of Dr Doig, and for that reason, any criticism of the opinions contained in his reports falls away. The respondent concedes that Dr Doig found that the applicant experienced some symptoms in his thoracic spine.
The respondent refers to those parts of Dr Doig’s report dated 4 July 2023 at [3.1], highlighted by the applicant in his submissions, summarised at [37] – [40] above.
The respondent submits that, in determining if the applicant has sustained a condition in his thoracic spine consequent upon the injury to the lumbar spine, the Commission must evaluate all of the evidence, both lay and medical, on a “common sense” basis, in accordance with what was said by Kirby P (as his Honour then was) in Kooragang Cement Pty Limited v Bates,[20] explained by Roche DP at [46] – [48] in Moon v Conmah Pty Limited.[21]
[20] (1994) 35 NSWLR 142 (Kooragang).
[21] [2009] NSWWCCPD 134 (Moon).
The respondent submits therefore that, having regard to the opinion of Dr Doig expressed in his reports, if the applicant can prove on the balance of probabilities that he suffered a condition in the thoracic spine consequent upon injury to the lumbar spine on 24 May 2018, he succeeds. Otherwise, he fails. Dr Doig states “not applicable” at [3.1(j)] in his report dated 4 July 2023 in answer to a question posed to him:
“Has the claimant suffered a consequential condition to his Thoracic Spine as a result of any injury on 24 May 2021 [sic, 24 May 2018]? If so, please provide reasons for your opinion. If not, please indicate the basis for this assessment.” (Emphasis in original)
The respondent submits that the extrapolation of this answer is that the doctor does not think that there has been a consequential loss or condition. The respondent does not disown what Dr Doig says in his report, but submits that this answer makes it quite clear that Dr Doig, who accepts that there are symptoms in the applicant’s thoracic spine, is of the view that they are secondary to the injury to the lumbar spine.
The respondent submits that there must be a factual basis for the finding that the applicant suffered a condition in his thoracic spine consequent upon injury to the lumbar spine, and that such basis is lacking in the applicant’s case.
The respondent refers to [20] of his statement dated 25 October 2023, submitting that what Mr Arnold says in that paragraph is a bare assertion that he suffered an injury to, or condition in, his thoracic spine. There is no explanation as to how the injury occurred, or the condition arose.
The respondent notes the report of Dr Patrick dated 14 February 2023 where the doctor records “…the thoracic muscular guarding”, as well as ongoing lumbar spinal problems under “OPINION:” on p 4 of the report. The respondent notes Dr Patrick’s earlier report dated
11 February 2021 where the following diagnoses appears in the Opinion section of the report:
“…likely muscular guarding at the lower thoracic spine based on the visible musculature, and also significant longitudinal scar at lower lumbar region which does irritate.”[22]
[22] ARD p 55.
The respondent submit that this is “the highwater mark of the doctor’s opinion about the thoracic spine”.[23]
[23] Transcript (T) p 29.10.
The respondent submits that the applicant has not provided any clear exposition as to how the condition in his thoracic spine has occurred. It submits that:
(a)    Mr Arnold’s own evidence is deficient;
(b)    the evidence provided by Dr Patrick is deficient, and that
(c)    Dr Doig concedes that a condition in the thoracic spine is possible, but that is on the basis of an assumption by Dr Patrick in his report dated 14 February 2023, to which he has access in preparing his report dated 14 July 2023. Dr Patrick says that the thoracic spine is rateable, but he does not provide an explanation as to how it arises.
The respondent submits that, in short, there is at least some doubt that the applicant sustained a condition in his thoracic spine consequent upon the injury to the lumbar spine.
The respondent submits that the applicant has a greater problem in demonstrating that he suffers from conditions in his shoulders consequent upon injury to the lumbar spine.
The respondent then deals with the multiple references made by the applicant, in support of his claim, that he suffered conditions in the shoulders as a result of falls attributable to the lumbar spinal injury. The respondent notes that the references to the right and left upper extremities (shoulders) in the ARD and s 78 notices are irrelevant, not being evidence of anything at all. The respondent then refers to the multiple references to falls referred to by the applicant, some of which are recorded as history in Dr Patrick’s reports. The respondent submits that there is a simple answer to such entries, found in the records of Dr Todhunter the treating pain specialist, in the records of the general practitioner, and in other clinical records. If one tracks through all of that material, the first reference to the applicant’s arms is on 22 April 2022. Prior to that, every single entry makes reference to falls and (use of) walking sticks. The respondent submits that unless there is evidence that the applicant suffered injury to his arms in some way, shape or form, that he suffered a fall is not to the point.
The respondent notes that the entry of 22 April 2022 contains reference to a tumble and fall forward experienced by the applicant, which he broke with his hands.[24] The following entry on the same page of the clinical notes is dated three weeks later on 11 May 2022. It contains reference to another fall at home landing on the butt, with no reference to striking the head or any other injuries. The respondent submits that it is important to note that the following entry dated 20 May 2022 contains no reference to symptoms in the shoulders.
[24] ARD p 197.
The respondent refers to the COC dated 8 February 2024 lodged as a late document on
13 March 2024. There are references therein to attendances on Dr Ayodele on 20 May 2022, 12 July 2022, 25 October 2022, and 20 December 2022 which refers to a fall the previous day with minor reference to the hip, but all with no reference to the shoulders.
The next entry the respondent refers to is that dated “6^th March 2023”[25] [sic, 6 November 2023] recording a fall over with the applicant “landing on his two shoulders, each on two different occasions, he is currently having bilateral shoulder pains worse on the right”.
[25] T p 32.30, but see AALD dated 13 March 2024 p 3.
The next entry the respondent refers to in the COC dated 8 February 2024 is that dated
5 February 2024 where there is a record of Mr Arnold “still having bilateral shoulder pain due to the fall he had on his shoulder”, the last word of which the respondent concedes is probably a reference to shoulders plural rather than singular.
The respondent then refers to the evidence relied upon by the applicant, and notes that
Dr Patrick in his report dated 14 February 2023 notes under “PRESENT SYMPTOMS:” that the shoulders were at that time a significant problem, whereas there is no reference to complaint of shoulder pain in either of the doctor’s two earlier reports.
The respondent concedes that there are multiple entries in both the histories recorded, and the contemporaneous clinical notes, that the applicant experienced multiple falls. However, what is absent in those records, with the possible exception of the record dated 22 April 2022 when Mr Arnold is reported to fall on outstretched arms, is complaint of a shoulder injury.
The respondent submits that the report of Dr Patrick dated 14 February 2023 predates the general practitioner’s records of actual injury to the shoulders. According to the respondent, that raises a particular difficulty for the applicant in the acceptance of what Dr Patrick says. That is that there needs to be an explanation of the mechanism of the injury identified. One source might be the applicant’s statement. However, if one goes back to that statement, dated 23 October 2023, there is very limited information about falls and the suffering of injury to the shoulders. That statement predates by a month the first entry in the general practitioner’s record, and the medical certificate, of injury to the shoulders.
The respondent submits that there is an absence of evidence from the applicant about injuring his shoulders in the falls, other than a very brief reference. There is an assumption by Dr Patrick which is not made out in the multiple entries in the records relied upon by the applicant in support of his claim of any injury to or condition in the shoulders.
The respondent then refers to the opinion of Dr Doig, who accepts as a hypothetical proposition in his second report dated 4 July 2023, that there could be injury to the shoulders with repetitive falls on the arms. The respondent submits that there is absolutely nothing wrong with the proposition that is put to the doctor, because the question uses the terminology “results from” and refers to the date of injury (noting error of “2021” instead of “2018”).
The respondent submits that, on the basis of a single medical certificate and very limited evidence from the applicant, that may not be sufficient to satisfy the Commission that the applicant has suffered conditions in his bilateral shoulder consequent upon injury to the lumbar spine. Dr Doig does not support that proposition other than as a hypothetical proposition, and he uses the term “recurrent falls”. Acknowledging that the respondent does not have the benefit of a further report from Dr Doig, and that the medical certificate (the COC) contains reference to a couple of falls, that is not the case that the applicant puts forward. The applicant’s case is that there were literally hundreds of falls with impact on the shoulders or arms.
The respondent notes that there is one reference in April 2022, and that it is not until 2023, after Dr Patrick’s opinion appears, and indeed after Dr Doig’s opinion, that there is a causal link drawn by the general practitioner.
The respondent submits that when one looks at all of the evidence, there is considerable doubt in making a finding that the applicant suffered injury to the shoulders as a result of falls according to the histories recorded by Dr Patrick and Dr Doig. The respondent submits that there were symptoms in the shoulders well before evidence of falls emerges. That is something that the applicant cannot overcome.

Applicant in response

The only submission that the applicant makes in response to the respondent’s submissions is in respect of a history recorded in a doctor’s report. The applicant notes that such a history may be accepted as evidence, but the weight it is given is dependent upon its credibility, having regard to other evidence in the proceedings or the absence thereof. The applicant refers to ss 135 and 136 of the Evidence Act 1995 (Evidence Act), noting that proceedings in the Commission are not governed by the rules of evidence, and (although not specifically referred to by counsel for the applicant) to ss 3 and 42 of the Personal Injury Commission Act 2020.
The applicant submits that to suggest that histories in medical reports are not evidence is wrong in the jurisdiction of the Commission. The applicant notes that there is direct evidence from himself in his statement as to the falls he has experienced. The applicant also submits that even if the Evidence Act did apply, all of the records of the treating doctors are business records, and there has been no attempt to limit the use to which records can in any way be used.

FINDINGS AND REASONS

Condition in the thoracic spine

As noted at [35] above, the applicant submits that Dr Doig misunderstood the law in respect of compensation for permanent impairment, and that he proceeded on the basis that for compensation to be awarded there had to be permanent impairment sustained as a result of an injury to a body part at the date of injury to that body part.
Relevant excerpts from the reports of Dr Doig dated 7 July 2021 and 4 July 2023 are set out above at [36] – [38]. Dr Doig notes that Mr Arnold “was directly questioned as to the cause of his restricted thoracic rotation and Mr Arnold stated this was due to lower-back pain”. There is no issue about this finding.
Dr Patrick first mentioned problems the applicant experienced with his thoracic spine in his second report dated 11 February 2021, following a consultation on that day. This was after the surgery carried out by Dr Ow-Yang, the treating neurosurgeon on 12 March 2019.
Dr Patrick listed among the applicant’s presenting symptoms:
“He has ongoing back pain, mainly at lumbar spine but also lower thoracic spine low down (he indicates). (I note in passing that MRI of lumbar spine of 27 May 2019 has indicated a small focal left posterior disc protrusion at T11/12 with indentation of thecal sac.) He indicates back pain higher up.”[26]
[26] ARD p 54.
Under “OPINION:” Dr Patrick says:
“The diagnoses now are of likely muscular guarding at lower thoracic spine based on the visible musculature, and also significant longitudinal surgical scar at lower lumbar region which does irritate.”[27]
[27] ARD p 55.
In his supplementary report dated 11 February 2021 Dr Doig expresses the belief that the applicant’s thoracic spine and lumbar spine are both rateable, and assessed 5% WPI in respect of the thoracic spine.
The respondent explains the response of Dr Doig of “Not applicable” to the question posed to him in [3.1(j)] of his report dated 4 July 2023, set out in [51] above. The respondent submits that this indicates that Dr Doig does not think that there has been a consequential loss or condition in the thoracic spine. Another interpretation of that answer is that the question is “Not applicable” because the doctor has clearly found that the applicant suffered no injury to the thoracic spine on 24 May 2021 [sic. 2018]. When one considers that Dr Doig says earlier in the report in answer to question in [3.1(g)] that, “There has been no injury to the thoracic spine. Any functional restrictions are secondary to the lower-back pathology”, I think that the second interpretation of the answer to the question posed to him in [3.1(j)] is more likely.
Dr Doig found on clinical examination of Mr Arnold on 30 April 2023 that:
“He could only forward flex to his knees with 10 degrees of lateral flexion and 5 degrees of spinal extension. Thoracic rotation was restricted due to lower-back pain.”
Although Dr Doig also noted that Mr Arnold remained tender in the lumbo-sacral region, and that there was no thoracic-spine tenderness, he did find restriction of thoracic spine rotation, due to lower back pain.
Dr Patrick on 11 February 2021 found muscular guarding lower thoracic spine based on the visible musculature, which he found to be rateable.
On 13 February 2023, as reported on 14 February 2023, Dr Patrick recorded under “PRESENT SYMPTOMS:” that Mr Arnold “…tires very readily. This is largely because of his lower back and thoracic spine”. His opinion was, among other things, that “as well as the thoracic muscle guarding he also has the ongoing lumbar spinal problems…”[28]
[28] ARD p 69 - 70.
In my view the symptoms experienced by the applicant in his thoracic spine, including muscle guarding and restriction of rotation, were consequent upon injury to the lumbar spine on 24 May 2018. The condition in the thoracic spine should be referred to a Medical Assessor for assessment along with injury to the lumbar spine, and if so found, any condition in the left and right upper extremity found to be consequent upon injury on 24 May 2018.

Conditions in the left and right upper extremities

The respondent does not take issue with the applicant’s numerous references to evidence of falls he experienced as a result of the injury to his lumbar spine and symptoms in the left leg. It does however point to what is recorded as to the sequelae of such falls.
The respondent’s submissions in this regard are summarised above at [61] – [64], and its submissions on the evidence on which the applicant relies at [65] – [68]. I accept that the submissions in [66] – [68] correctly record the relevant history of falls involving upper extremities. The first record is the entry in the clinical notes of the general practitioner dated 22 April 2022 when Mr Arnold experienced a tumble and fall forward which he broke with his hands.
There is an entry on 11 May 2022 when the applicant reported a fall at home, while holding a chair which then moved, landing on his butt. “[N]o headstrike” or other injuries are recorded. There is an entry on 26 September 2022 when Mr Arnold is recorded by Dr Ayodele as having had a fall while working fall the previous day, but no injury. There is an entry on
22 November 2022 when Mr Arnold is recorded by Dr Ayodele as having had a fall the previous Sunday after his left leg gave way, but no injury was sustained in the process.
The falls correctly recorded in the COC dated 8 February 2024 as having occurred on
6 November 2023 and 5 February 2024 are as follows:
(a) “…fall over landing on his two shoulders, each on two different occassions [sic], he is currently having bilateral shoulder pains worse on the right”,
(6 November 2023) and
(b) “…is still having bilateral shoulder pain due to the fall he had on his shoulder”
(5 February 2024).
They are relevant. It is clear that Dr Ayodele is here recording injury to both shoulders as a result of falls.
The respondent submits that the first reference by Dr Patrick to problems experienced by
Mr Arnold with his shoulders appears in the doctor’s last report dated 14 February 2023, and that this raises a particular difficulty for the applicant in the acceptance of what Dr Patrick says because the report predates the two clinical notes entries referred to in [88] above, and that there is no mechanism of injury to the shoulders explained by Dr Patrick. The respondent then refers to the very limited information about falls provided by the applicant in his statement. Mr Arnold does not provide in any detail of the mechanism of “…the consequential injuries I sustained to both my shoulders” (see [41] of his statement dated
25 October 2023). I do not think that this is surprising in view of the significant number of undisputed falls he experienced as a result of injury to the lumbar spine, as highlighted in his submissions.
Similarly, I do not regard the failure of Dr Patrick to provide details of the mechanism of injury to the upper extremities as a result of falls as fatal to his case on this issue. In his report dated 14 February 2023 the doctor states at [7] on the third page of the report “The shoulders are a significant problem now, probably related to some extent to falls”, and later on the same page “The shoulders have deteriorated in a major kind of way (possibly partially related to falls)”.[29] The report predates the first recorded clinical note of 6 November 2023, referred to in [88] above, by nine months. Dr Patrick raises at least the possibility that the major deterioration he found in the applicant’s shoulders as being partially related to falls, and even the probability that the significant problem in the shoulders being related to some extent to falls. (Emphasis added)
[29] ARD p 69.
I conclude from this timeline that Mr Arnold was experiencing problems with his shoulders from at least February 2023 when examined by Dr Patrick prior to issue of his report dated 14 February 2023. The applicant had fallen as early as 22 April 2022 when he tumbled forward and broke his fall with his hands.

It is clear from the records of Dr Ayodele that Mr Arnold experienced three falls involving injury to, or at least symptoms in, the shoulders over the period from late 2023 until
February 2024.
It is not necessary that there be pathology demonstrated in a body part in order to determine if a condition in that body part has arisen consequent upon injury in another part of the body. A finding of symptoms is sufficient.[30] The respondent does not submit that the applicant did not experience symptoms in his shoulders. It disputes the causation thereof.
[30] See for example Moon at [47] – [48].
Dr Doig states in his report dated 4 July 2023 that:
“There may have been a consequential injury to the left shoulder as a result of the recurrent falls. Again this needs to be clarified with the treating General Practitioner. Mr Arnold was uncomplaining with respect to his shoulders at the time of my previous assessment.”[31]
Dr Doig makes the same comment in respect of the right shoulder.[32]
[31] Reply p 22.
[32] Reply p 24.
Dr Doig also says in that report:
“As far as I am aware, no imaging has been undertaken on the shoulders to clarify any underlying pathology. I asked Mr Arnold if he had undergone investigations on his shoulders and he was unable to recollect any such imaging. As far as I am aware, there is no evidence employment is the main contributing factor to his right shoulder condition. As outlined previously, this should be clarified with the treating practitioner and employer.”[33]
[33] Reply p 23.
Having regard to the evidence summarised above, and what was said by Kirby P in Kooragang as to a “common sense” evaluation of all of the evidence both lay and medical, I find that there is sufficient evidence to find that the applicant experienced a condition in both his left shoulder and right shoulder because of falls as a result of injury to his lumbar spine. Both left and right upper extremities (shoulders) should be referred to a Medical Assessor for assessment of WPI along with the thoracic spine and lumbar spine.

Weekly benefits

Determination of the applicant’s claim for weekly benefits is deferred until after the issue of a Medical Assessment Certificate and the expiration of the appeal period thereafter.

SUMMARY

The applicant sustained a condition in the thoracic spine consequent upon injury to the lumbar spine on 24 May 2018.
The applicant sustained a condition in the left upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018.
The applicant sustained a condition in the right upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018.
The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of:
(a)    injury to the lumbar spine on 24 May 2018;
(b)    condition in the thoracic spine consequent upon injury to the lumbar spine on
24 May 2018;
(c)    condition in the left upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018;
(d)    condition in the right upper extremity (shoulder) consequent upon injury to the lumbar spine on 24 May 2018, and
(e)    scarring in accordance with the Table for the Evaluation of Minor Skin Impairment (TEMSKI).
The documents to be referred to the Medical Assessor are:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    AALD dated 23 January 2024 with the following attachments:
(i)COC of Dr Adeniran dated 6 October 2023;
(ii)COC of Dr Ayodele dated 6 November 2023;
(iii)COC of Dr Ayodele dated 7 December 2023;
(iv)COC of Dr Ayodele dated 8 January 2023;
(d)    AALD dated 13 March 2024 with COC of Dr Ayodele dated 8 February 2024 attached, and
(e)    this Certificate of Determination and Statement of Reasons.
Determination of the applicant’s claim for weekly benefits is deferred until after the issue of a Medical Assessment Certificate and the expiration of the appeal period thereafter.

[2024] NSWPIC 168

5 April 2024