Barraclough v Awcon Pty Ltd
[2022] NSWPIC 157
•12 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Barraclough v AWCON Pty Ltd [2022] NSWPIC 157 |
| APPLICANT: | Mitchell Horace Barraclough |
| RESPONDENT: | AWCON Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 12 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim made by the applicant for permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 for injury to the cervical spine, right shoulder, left shoulder and nervous system sustained on 20 January 2020 in the course of employment with the respondent; alleged injury to the left shoulder and nervous system placed in issue; Held– The applicant sustained injury to his nervous system on 20 January 2020 in the course of his employment with the respondent with his employment being a substantial contributing factor to injury and award for the respondent relevant to the applicant’s allegation of injury to his left shoulder; the applicant’s claim for permanent impairment compensation resulting from injury to his cervical spine, right upper extremity and nervous system, with date of injury of 20 January 2020 is remitted to the President for referral to a Medical Assessor for purpose of assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his nervous system on 20 January 2020 in the course of his employment with the respondent, with his employment with the respondent being a substantial contributing factor to injury. 2. Award for the respondent in respect of the applicant’s allegation of injury to his left upper extremity (left shoulder) sustained on 20 January 2020 in the course of his employment with the respondent and his claim for permanent impairment compensation resulting from such injury. 3. The applicant’s claim for permanent impairment compensation resulting from injury to his cervical spine, right upper extremity (right shoulder) and nervous system sustained on 20 January 2020 in the course of his employment with the respondent is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment resulting from injury. 4. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons are: a. the Application to Resolve a Dispute and attached documents, and b. the Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
At the time the applicant, Mr Mitchell Horace Barraclough (Mr Barraclough), allegedly sustained injury the subject of these proceedings, he was employed by the respondent, AWCON Pty Ltd (AWCON), working as a trades assistant. Mr Barraclough is currently 26 years of age.
Mr Barraclough alleges he sustained injury to his cervical spine, left upper extremity (left shoulder), right upper extremity (right shoulder) and nervous system on 20 January 2020 in the course of his employment with AWCON while using a crowbar to move a very heavy concrete panel.
Mr Barraclough claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 20% whole person impairment (WPI) resulting from injury sustained to his cervical spine, left upper extremity, right upper extremity and nervous system on 20 January 2022 in the course of his employment with AWCON.
Mr Barraclough’s claim for permanent impairment compensation is declined and he was issued with notice dated 16 December 2021[1] in which he was advised of the decision to decline his claim. While AWCON accepted Mr Barraclough sustained injury to his cervical spine and right shoulder on 20 January 2022 in the course of his employment with AWCON, AWCON disputed Mr Barraclough had sustained injury to his left shoulder and to his nervous system in the incident.
[1] Reply at p 39.
Under cover of letter dated 20 December 2021[2] AWCON made an offer to resolve Mr Barraclough’s claim for permanent impairment compensation for 13% WPI resulting from injury sustained by Mr Barraclough to his right shoulder and cervical spine. The offer of resolution was grounded in opinion provided by Dr Doig in his independent medical examiner’s report dated 19 November 2021[3]. Mr Barraclough did not accept this offer of resolution and the dispute arising was referred to the Personal Injury Commission (Commission) for resolution.
[2] Application to Resolve a Dispute (ARD) at p 13.
[3] Reply at p 33.
ISSUES FOR DETERMINATION
The parties agree the following issue remains in dispute:
(a) whether Mr Barraclough sustained injury to his left shoulder on 20 January 2020 in the course of his employment with AWCON;
(b) whether Mr Barraclough sustained injury to his nervous system on 20 January 2020 in the course of his employment AWCON, and
(c) the level of permanent impairment suffered by Mr Barraclough resulting from injury sustained on 20 January 2020 in the course of his employment with AWCON.
PROCEDURE BEFORE THE COMMISSION
Mr Barraclough’s claim for permanent impairment compensation came before me for teleconference on 4 March 2022. Mr Tancred appeared for Mr Barraclough. Ms Leonard appeared for AWCON. Mr Verhcidazo and Ms Chung, representatives of EML were present. Mr Barraclough was present. By consent, Mr Barraclough’s claim was amended to include allegation of injury sustained by Mr Barraclough to his nervous system on 20 January 2020 in the course of his employment with AWCON and a claim for permanent impairment compensation payable under s 66 of the 1987 Act for permanent impairment resulting from that injury.
Mr Barraclough’s claim was unable to be resolved at teleconference and it came before me again for conciliation/arbitration hearing on 7 April 2022. Mr Morgan of counsel appeared for Mr Barraclough, instructed by Mr Tancred. Ms Goodman of counsel appeared for AWCON instructed by Ms Leonard. Ms Chung was present. Mr Barraclough was present.
Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statement of Mr Barraclough
Mr Barraclough provided a statement dated 25 January 2022[4]. He described the circumstances of injury:
“On 20 January 2020 I was performing my normal duties. I was directed by my shift boss to move a concrete slab with a crowbar that had not been laid square with another slab. These concrete slabs were extremely heavy, weighing in excess of 2 tonnes. I manoeuvred the crowbar under the concrete slab, and as I did so I felt a sharp pain in my neck and right shoulder, and I subsequently developed a severe headache.
About two months after this day as my pain continued in my neck and right shoulder, I began to develop pain in my left shoulder”.
[4] ARD at p 1.
Mr Barraclough explained he saw “numerous” doctors in an attempt to address his ongoing neck and arm pain but said “no one was really able to offer me any solutions”. Relevant to the assessments by the independent medical examiners, Mr Barraclough said:
“I have seen Doctor Dixon and Doctor Doig for the purpose of my claim for Whole Person Impairment and I told both of them the truth. Doctor Dixon interviewed and assessed me for nearly an hour. The entire process with Doctor Doig took less than 5 minutes. His examination of me was less than 2 minutes. He asked me to raise both my arms and then he measured the circumference of my bicep. That was all he did”.
Statement of Joa Lawrence
In a statement dated 30 January 2020[5] Mr Lawrence, project manager, said that in a telephone conversation with Mr Barraclough on 24 January 2020, Mr Barraclough relevantly told him he had “sort of mentioned” to Paul (who I assume to be Paul Stewart) that he had hurt his neck while at work.
[5] Reply at p 1.
Statement of Paul Stewart
In a statement also dated 30 January 2020[6] Mr Stewart recalled that around midnight on 20 January 2020, Mr Barraclough told him that he had taken Advil medication, although Mr Barraclough did not provide a reason for taking the medication. Mr Stewart recalled that at the end of the shift Mr Barraclough told him “he might go and see his girlfriend’s Aunty in Lithgow if his neck is still sore during the day”.
Treating medical evidence
Ochre Health Medical Centre Lithgow
[6] Reply at p 3.
Mr Barraclough came under the general medical care of Ochre Health Medical Centre Lithgow. The clinical records of the practice as at 24 August 2021[7] are in evidence before the Commission.
[7] ARD at p 311.
The patient details relevant to Mr Barraclough in part record no “current medications”, no “active past history” and no “inactive past history”. When Mr Barraclough consulted with Dr Ramachandra on 28 January 2020, Dr Ramachandra recorded:
“For review of work related injury.
Happened on Monday 20 January 2020.
Moving concrete panel with crowbar, felt instant pull and pain on the neck.
Having bilateral neck pains and worsening headaches.
Right arm pains, mainly on the shoulder, elbow and forearm,
Feeling numbness on the right 2 and 3 fingers, twitching and contractions.
Feeling weak on the right arm.
ROMs on the neck and right shoulder globally restricted.
Neurologically grossly intact but no specific examinations were performed as patient was in pain on the neck and right arm and even with movements on the right arm he was shaking slightly”.
Dr Ramachandra prescribed Mr Barraclough with Panadeine Forte and referred him for diagnostic imaging of his cervical spine and right shoulder. The initial Certificate of Capacity issued by Dr Ramachandra on 28 January 2020 provided diagnosis of “neck injury” sustained on 20 January 2020 and provided a description of injury in essentially the same terms as his clinical notes:
“Moving concrete panel with crowbar, felt instant pull and pain on the neck.
Having bilateral neck pains and worsening headaches.
Right arm pains, mainly on the shoulder, elbow and forearm,
Feeling numbness on the right 2 and 3 fingers, twitching and contractions.
Feeling weak on the right arm”.
Dr Ramachandra relevantly wrote the word “none” in response to the medical certification requirement to “detail any pre-existing factors which may be relevant to this condition”.
On review on 5 February 2020 Dr Ramachandra noted Mr Barraclough continued to suffer ongoing neck pains and right shoulder pains with restriction in movement. Dr Ramachandra noted “some sensory differences on both arms to light touch according to patient” and noted Mr Barraclough was taking Panadeine Forte to control pain. Dr Ramachandra referred Mr Barraclough for orthopaedic review with Dr Jones. Dr Ramachandra prescribed Mr Barraclough with Lyrica.
In an email dated 19 February 2020, Mr Barraclough’s treating physiotherapist, Angela Rush, wrote to Dr Ramachandra seeking clearance to commence physiotherapy treatment following reported suggestion by Dr Jones that Mr Barraclough commence treatment. She said of Mr Barraclough:
“I assessed his cervical movement today … it is still severely restricted and he still has constant headaches (of varying intensity) and at time severe pins and needles and pain down right arm”.
On review that same day, Dr Ramachandra noted of Mr Barraclough:
“ … Condition unchanged.
Still ongoing neck pains, limited ROMs, ongoing tingling, numbness and some weakness of the right arm”.
Dr Ramachandra also noted Mr Barraclough had consulted with Dr Jones and had been referred for review with a neurologist.
Mr Barraclough continued to consult with Dr Ramachandra. Dr Ramachandra noted on 18 March 2020 there was some improvement with Mr Barraclough having commenced physiotherapy treatment although he reported he was “still in pain on the right arm, tingling and numbness”. Dr Ramachandra was sufficiently concerned about Mr Barraclough’s condition that he discussed Mr Barraclough’s progress with Ms Rush and made early arrangement for review with Professor Hawke, Neurologist, for 30 March 2020. Dr Ramachandra again prescribed Mr Barraclough with Panadeine Forte and Lyrica.
In an email dated 18 March 2020, Ms Rush reported to Dr Ramachandra that Mr Barraclough was still getting “daily headaches” and while there was some injury improvement “there is still a way to go yet”.
On 30 March 2020, Dr Ramachandra noted Mr Barraclough had consulted with Professor Hawke and further investigations were pending. On review on 29 April 2020 Dr Ramachandra again prescribed Mr Barraclough with Panadeine Forte and Lyrica. On review on 22 June 2020 Dr Ramachandra recorded “ongoing similar pains related to the work related injury, minimally improving” and again prescribed Mr Barraclough with Panadeine Forte. On review on 29 June 2020 Dr Ramachandra noted Mr Barraclough was to consult again with Professor Hawke “in the middle of July” and on 31 July 2020 Dr Ramachandra noted:
“Specialist neurologist according to patient has nothing more to offer regarding treatment.
Patient states he is not getting better and still in pain, not able to go to work”.
With Dr Ramachandra concerned about Mr Barraclough’s condition, although Professor Hawke’s report was still outstanding “he went through all correspondence since the beginning and discussed” and wrote “Neurophysiological studies is [sic] normal ? Where is the pain coming from”. On 20 August 2020 Mr Barraclough’s general medical care was transferred to Lithgow Valley Medical Centre at Mr Barraclough’s request.
There is no mention in these clinical records of injury to Mr Barraclough’s left shoulder.
Tablelands Orthopaedics
Mr Barraclough was referred for orthopaedic review with Dr Jones. In his report dated 13 February 2020[8] Dr Jones took a history of Mr Barraclough feeling instant pain “in the paracervical region after moving a heavy concrete rock with a crow bar”. Dr Jones reported:
“Since that time he has had continued pain in and round the shoulder girdle as well as some intermittent tingling sensation. He has difficulty sleeping and complains of a lot of headaches”.
[8] ARD at p 290.
Dr Jones formed the impression Mr Barraclough’s symptoms were “more related to the muscle tear in the paraspinal region” demonstrated on the MRI of the cervical spine but took the precaution of referring Mr Barraclough for review by a neurologist “to ensure there is nothing untoward in this area”. He also referred him for physiotherapy treatment. Dr Jones made no arrangement for further review.
There is no mention in Dr Jones’ reporting of injury to Mr Barraclough’s left shoulder.
Professor Simon Hawke
With delay in securing consultation with the neurologist to who Mr Barraclough had been referred by Dr Jones, Mr Barraclough was referred for neurological review with Professor Hawke.
In his initial report dated 30 March 2020[9] Professor Hawke said of Mr Barraclough:
“He was trying to position a 6 to 7 tonne concrete panel using a crowbar when while straining he suddenly developed headache and pain in his neck radiating down into his right arm to the medial hand. The pain was particularly felt over the trapezius. Since then pain has been ongoing. At times his hand goes ‘blotchy’ white and purple. He has noted some twitching in the medial fingers of the right hand. There is also pain localised to the right shoulder and scapular region. He has had a number of investigations including x-ray of his shoulder, MRI of his cervical spine and ultrasound of his shoulder. He saw Dr Jones orthopaedic surgeon who felt his shoulder was satisfactory. He remains off work because of symptom persistence. His current medications are pregabalin 75 mg BD and Panadeine Forte one BD. He denied any prior injuries. He has been having physiotherapy that seems to have improved his neck pain better than his shoulder pain. There is no relevant family history”.
[9] ARD at p 294.
Following review of diagnostic imaging and clinical examinations, Professor Hawke referred Mr Barraclough for further investigation including positional ultrasonography and nerve conduction studies.
The nerve conduction study report dated 3 June 2020[10] concluded:
“In summary, the neurophysiological study does not demonstrate a cause for the patient’s right upper limb symptoms”.
[10] ARD at p 303.
In his subsequent report dated 30 July 2020[11] Professor Hawke wrote:
“He is still getting a lot of tingling in the hands often when he wakes in the morning or uses his mobile phone that I think is most likely due to local pressure on nerve trunks… He still gets headaches that have improved with Sanomigran. Positional ultrasonography suggests he does have tight thoracic outlets, but nerve conduction studies provide no support of significant thoracic outlet syndrome...
I must say I find it difficult to understand why he is getting so much pain now 7 months after the injury, in fact he thinks he is getting worse”.
[11] ARD at p 196.
There is no mention in Professor Hawke’s reporting of injury to Mr Barraclough’s left shoulder.
Lithgow Valley Medical Practice
Mr Barraclough came under the general medical care of Dr Samuel at Lithgow Valley Medical Practice. While the clinical records of the practice as at 5 August 2021[12] are in evidence before the Commission, they fail to demonstrate any of Mr Barraclough’s consultations with Dr Samuel. However, there is a report of Dr Samuel dated 13 August 2020[13] in which he provided opinion and referral for review by a thoracic surgeon. Dr Samuel said of Mr Barraclough:
“Clinically he has thoracic outlet syndrome relating to his trauma at work on 20/1/2020 – with tear in his right sided paraspinal muscles”.
Northern Sydney Vascular
[12] ARD at p 179.
[13] ARD at p 29.
Mr Barraclough was referred for review by Dr Neale in relation to possible thoracic outlet contribution to his symptoms. Dr Neale’s clinical notes as at 5 August 2021[14] are in evidence before the Commission. In his report dated 24 September 2020 Dr Neale noted Mr Barraclough had sustained an injury in January whilst using a crowbar to lift concrete. He reported:
“He denied any symptoms prior to that injury when he felt a sudden onset of pain and has had problems since that time”.
[14] ARD at p 307.
Dr Neale noted Mr Barraclough had been orthopaedically reviewed by Dr Jones and neurologically reviewed by Professor Hawke, both of who were unable to define specific cause for his symptoms. Dr Neale noted Mr Barraclough had received physiotherapy treatment “with no relief”. Following review of the diagnostic imaging available and clinical examination of the vascular compression, which Dr Neale described as “difficult due to significant limitation of shoulder movement related to pain”, Dr Neale said of Mr Barraclough:
“His symptoms are inconsistent with any venous thoracic outlet compression and I have therefore reassured him that this finding on the MRI and vascular studies today are incidental and unrelated. All his clinical examination would suggest his problem remains musculoskeletal in nature though further assessment is beyond my scope of clinical practice”.
While Dr Neale referred Mr Barraclough to Dr Dalton for review he cautioned:
“If there were still any concerns in relation to possible thoracic outlet involvement, this would be neurogenic in nature and I would recommend review with Dr David Stewart (hand surgeon here at Royal North Shore Hospital) who has extensive experience with neurogenic thoracic outlet issues”.
There is no mention in Dr Neale’s reporting of injury to Mr Barraclough’s left shoulder or headaches.
Dr Seamus Dalton
Mr Barraclough was referred for review by Dr Dalton, specialist in rehabilitation medicine. Dr Dalton provided reports dated 13 November 2020, 4 December 2020 and 29 January 2021[15]. Dr Dalton described the circumstances of injury and sequelae:
“As he was levering up a heavy concrete panel with a crow bar he felt a sharp pain in the right suprascapular region and fairly soon after that he developed a headache and some pain radiating down his arm. It was a night shift and he was working as a tradies assistant at the time and after he went home he took some Panadol and Nurofen and had a sleep but the next day he was sore down the right side of his neck. He recalls that he had difficulty abducting his right arm and over time his symptoms progressed and he started to experience pain, numbness and tingling down the right arm with discoloration in the hand. This was specifically aggravated by movement, particularly into elevation or abduction and then he started to develop similar but milder symptoms on the left side which has really developed in the last few months”.
[15] Reply at pp 18-24.
Dr Dalton noted Mr Barraclough had consulted with an orthopaedic surgeon, neurologist and also Dr Neale and while conceding he did not have “all of the results of his investigations”, provided opinion:
“… the MRI is of questionable significance as I do not think that he has any evidence of a structural thoracic outlet obstruction. His problems are more dynamic and I think that a lot of this stems from what was initially a probable muscular strain and then a lot of compensatory patterns that have emerged over time”.
Dr Dalton provided Mr Barraclough with an exercise regime and prescribed Endep. On review on 4 December 2020, Dr Dalton reported “noticeable improvement” and considered there was “scope to continue progress over the next several months”. On review on 29 January 2019 Dr Dalton reported Mr Barraclough continued to make “steady progress”. He said of Mr Barraclough that he “gets the occasional tingling down the arm but he has maintained good mobility and is very keen to progress things further”. He explained to Mr Barraclough that while progress is slow:
“… the encouraging thing is that he now has normal movement of the shoulder and a lot of his scapular dumping and secondary brachial symptoms have resolved”.
Dr Dalton arranged for Mr Barraclough to have a Telehealth consultation with an exercise physiologist who would organise an online exercise program for him to undertake both at home and at his local gym.
Mindworks Clinical Psychology
Mr Barraclough was referred to Bill Bouzianis, for psychological counselling. In his report dated 12 January 2021[16] Mr Bouzianis reported Mr Barraclough had presented with a number of difficulties:
“… low mood, low energy, amotivation, feelings of helplessness, worry re uncertainty about his future, weight gain of 15kg since injury, irritability, and constant pain relating to injury including headaches”.
[16] ARD at p 45.
Mr Bouzianis reported Mr Barraclough had attended three sessions with him. At the time of reporting, being a time after which Mr Barraclough had come under the care of Dr Dalton, Mr Bouzianis said of Mr Barraclough:
“He reported significant improvements in his mood and overall functioning after receiving positive news regarding his injury, rehabilitation prospects and likelihood of improved functioning and return to work. He has since reportedly been more active, felt more hopeful and focused on his rehabilitation exercises day to day. He feels confident in adhering to his plan and managing any residual adjustment difficulties and will consequently be discharged from this service”.
Independent medical evidence
Dr Skapinker
Mr Barraclough was assessed over Telehealth on 23 September 2020 by Dr Skapinker in his capacity as independent medical consultant. Dr Skapinker provided a report dated 30 September 2020[17]. While Dr Skapinker noted at the time of assessment Mr Barraclough was receiving no active treatment, he reported “he has tried several medications in the past including Panadeine Forte and Lyrica but he relies only on Panadol at present”.
[17] Reply at p 14.
Dr Skapinker described the circumstances of injury:
“He reports he was positioning a large concrete panel into position using a crowbar with great force when experiences severe pain at his neck radiating into his right arm”
Dr Skapinker noted Mr Barraclough had consulted with Dr Ramachandra, with neurological review by Professor Hawke and recommendation of review by Dr Dalton. He also noted referral for review by Dr Neale, which was pending.
Mr Barraclough presented with complaints which included headaches, pain radiating down both arms, right worse than left and tingling and blueish discoloration of both hands. Dr Skapinker provided opinion which he hoped review by Dr Neale would clear up:
“It appears to me that this case has been protracted due to the apparent failure to make a firm diagnosis. I believe the correct diagnosis is bilateral venous thoracic outlet syndrome”.
Dr Skapinker said telephone contact with Dr Samuel confirmed Dr Samuel too was of the opinion diagnosis was bilateral venous thoracic outlet syndrome.
Dr Dixon
Mr Barraclough was orthopaedically assessed by Dr Dixon in his capacity as independent medical examiner on 8 September 2021. Dr Dixon provided two reports dated 16 September 2021[18]. In his substantive report Dr Dixon reported the circumstances of injury and sequelae:
“This 25 year old claimant injured his shoulders at work when he was moving a concrete pallet with a crow bar to re-align it with another concrete panel at 11pm at the end of his night shift on 20 January 2020. He was working as a trade’s assistant and at the time, he felt dull pain in his neck with shoulder brachialgia and severe headaches. He went home after the accident and took Panadol and Nurofen but with persisting soreness in these areas and attended his GP. He was referred for imaging and had referral to an orthopaedic surgeon, a neurologist and a vascular surgeon. He was eventually diagnosed with thoracic outlet syndrome with pain and stiffness in his shoulders and paraesthesia radiating to his hands and persisting neck pain and stiffness and occipital headaches”.
[18] ARD at pp 437 and 439.
Dr Dixon described Mr Barraclough’s past general health as having been “satisfactory”. His current treatment consisted of Panadol for pain relief and Nurofen as an anti-inflammatory, with consultation with his general medical practitioner “if necessary”.
Mr Barraclough’s present symptoms included neck and bilateral shoulder pain and stiffness, more marked on the right, with radicular complaint and intermittent paraesthesia extending into his hands and “severe recurrent chronic occipital headaches”. Following examination “via Zoom”, review of the radiological investigations, neurologist’s reporting, vascular surgeon’s reporting and nerve conductions studies, Dr Dixon provided diagnosis of the injuries Mr Barraclough sustained on 20 January 2020, which included occipital migraine headaches and bilateral brachialgia with post-traumatic stiffness more marked on the right where he said there was subacromial bursitis. Relevant to the issue of causation Dr Dixon merely said of the injuries and his diagnosis:
“The above conditions are causally related to the subject accident at work”.
Dr Doig
Mr Barraclough was orthopaedically assessed on 16 November 2021 by Dr Doig in his capacity as independent medical examiner. Dr Doig provided a report dated 19 November 2021. Dr Doig reported the circumstances of injury and sequelae:
“… he alleges to have suffered an injury to his right shoulder and trapezius muscle region in an incident on 20 January 2020.
He described working underground at a local Mine and he was moving concrete panels using a crowbar to align the panels. This was a fabricated surface which the heavy machinery was driven over. He experienced immediate pain and reported the problem.
He denied any previous problems or injuries to his neck or shoulders.
He saw his local Doctor and various investigations were undertaken. An MRI scan on 31 January 2020 revealed a para-median, right muscle tear consistent with the injury. An ultrasound scan of the right shoulder on 4 February 2020 was reported as normal. A follow-up scan in May 2020 revealed sub-acromial bursitis and impingement. A plain X-Ray of the neck in August 2020 was reported as normal.
Mr Barraclough developed neurological symptoms in both arms. An ultrasound scan revealed venous occlusion of both sub-clavian veins bilaterally and an MRI scan of the thoracic outlet was suggestive of bilateral venous obstruction. Mr Barraclough was reviewed by a Vascular Surgeon and the venous occlusion was thought to be co-incidental in nature”.
Dr Doig described Mr Barraclough’s past general health as having been “good”. His current treatment consisted of Nurofen and Panadol for his musculo-skeletal pain.
Mr Barraclough presented with complaint of generalised pain around the neck and over both shoulders with an inability to use his arms overhead. There was also complaint of intermittent paraesthesia in his hands and cervico-genic headaches. Following examination, with Dr Doig reporting “Mr Barraclough was experiencing no neurological symptoms at the time of my assessment”, Dr Doig provided diagnosis of “tear in the muscles of the right side of the neck with probable soft-tissue injury to the trapezius muscle” and opinion:
“There is no doubt that there appears to have been an acute injury to the right side of the neck and upper border of the right shoulder while moving the concrete panel on 20 January 2020. The neurological symptoms and left-shoulder problems appear unrelated to this incident unless there is evidence available to the contrary”.
Submissions
Ms Goodman and Mr Morgan made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.
Determination
Injury
AWCON disputes Ms Barraclough sustained injury to his left shoulder and injury to his nervous system in the workplace incident occurring on 20 January 2020.
Mr Barraclough has the onus of proving he sustained injury to his left shoulder and nervous system on 20 January 2020 in the course of his employment with AWCON. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[19] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[19] [2008] NSWCA 246 (Nguyen).
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment and s 9A of the 1987 Act relevantly provides no compensation is payable under the Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Roche DP considered the meaning of “personal injury” in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[20] observing:
“The authorities establish that a ‘personal injury’ is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; CLR 286 at [39]). In other words, as stated in [81] it is ‘a sudden identifiable pathological change’”.
[20] [2014] NSWWCCPD 47.
Relevant to this issue of causation of the injury Mr Barraclough alleges he has sustained to his left shoulder and nervous system, in Kooragang v Cement Pty Ltd v Bates[21] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. 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.”
[21] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Left shoulder injury
Of significance in this matter is there is no contemporaneous mention of Mr Barraclough having sustained injury to his left shoulder on 20 January 2020 in the course of his employment with AWCON.
Dr Ramachandra made no note about one week after the incident of Mr Barraclough providing a history of having sustained injury to his left shoulder in the incident, and there is no mention in Dr Ramachandra’s notes of left shoulder complaint by Mr Barraclough for the remainder of the time he was under his general medical care, being up until mid-August 2020.
There is no mention in Dr Jones’ reporting just over three weeks after the incident, of left shoulder complaint by Mr Barraclough. There is no mention in Professor Hawkes’ reporting in late March 2020 and late July 2020 of left shoulder complaint by Mr Barraclough. There is no mention in Dr Neale’s reporting in late September 2020 of left shoulder complaint by Mr Barraclough. It is not until Mr Barraclough consulted with Dr Dalton some 10 months after the incident that there is left shoulder complaint by Mr Barraclough, with Dr Dalton reporting a development of mild left shoulder symptoms after the incident “which has really developed in the last few months”.
In his statement made 10 days after the incident, Mr Stewart said that at the end of the shift on the day of the incident Mr Barraclough had told him “he might go and see is girlfriend’s Aunty in Lithgow if his neck is still sore during the day”. In his statement also made 10 days after the incident, Mr Lawrence said Mr Barraclough had spoken with him on the telephone four days after the incident and told him he had “sort of mentioned” to Mr Stewart that he hurt his neck. There is no mention by either Mr Stewart or Mr Lawrence that Mr Barraclough had said he had hurt his left shoulder in the incident.
In his statement made some two years’ after the incident Mr Barraclough said in part:
“I manoeuvred the crowbar under the concrete slab, and as I did so I felt a sharp pain in my neck and right shoulder, and I subsequently developed a severe headache.
About two months after this day as my pain continued in my neck and right shoulder, I began to develop pain in my left shoulder”.
Mr Barraclough presented with left shoulder complaint to both Dr Dixon and Dr Doig. Dr Dixon provided opinion Mr Barraclough’s bilateral shoulder injuries “are causally related to the subject accident at work” but failed to provide reasoning for opinion as to how Mr Barraclough sustained injury to his left shoulder in the incident. Dr Doig provided conditional opinion regarding Mr Barraclough’s left shoulder injury in that he said the injury appeared “unrelated to this incident unless there is evidence to the contrary”. I feel I am not particularly assisted by the opinions offered by either independent medical examiners as to the cause of Mr Barraclough’s left shoulder injury.
The absence of documentary evidence to support any complaint by Mr Barraclough of left shoulder injury sustained on 20 January 2020 (either contemporaneous to the incident or at least during the period between the incident and when Mr Barraclough’s left shoulder complaint was first reported by Dr Dalton on 13 November 2020) is, I believe, a serious omission in Mr Barraclough’s case, particularly so as Mr Barraclough himself has said he began to develop left shoulder symptoms about two months after the incident.
I do not accept Mr Barraclough has discharged the onus of proof required of him and I am not satisfied on the balance of probabilities that Mr Barraclough sustained injury to his left shoulder on 20 January 2020 in the course of his employment with AWCON.
Nervous system injury
Dr Ramachandra made a note about one week after the incident of Mr Barraclough sustaining injury on 20 January 2020 and made reference in part to Mr Barraclough having “worsening headaches”. Dr Ramachandra issued Mr Barraclough with an initial certificate of capacity at the time in which he provided a description of injury which also included Mr Barraclough having “worsening headaches”. About two weeks after the incident Dr Ramachandra prescribed Mr Barraclough with Lyrica. Dr Ramachandra again prescribed Mr Barraclough with Lyrica on 18 March 2020 and 29 April 2020.
In his report dated just over three weeks after the incident, Dr Jones noted Mr Barraclough “complains of a lot of headaches”.
In an email to Dr Ramachandra about one month after the incident, Ms Rush noted Mr Barraclough was suffering constant headaches, which she described to be of varying intensity. In a further email to Dr Ramachandra about two months after the incident, Ms Rush noted Mr Barraclough was suffering daily headaches.
In a report dated just over two months after the incident, Professor Hawke reported a history of injury, which included a history of Mr Barraclough suddenly developing headache in the incident. He noted too that Mr Barraclough’s medication included pregabalin (Lyrica being the brand name for pregabalin), and noted Mr Barraclough denied any prior injuries. In his subsequent report dated just over six months after the incident, Professor Hawke reported Mr Barraclough “still gets headaches that have improved with Sanomigran".
In a report dated just nine months after the incident, Dr Skapinker reported Mr Barraclough presented at assessment with complaints, which included headaches.
In a report dated some ten months after the incident, Dr Dalton reported a history of injury, which included Mr Barraclough developing a headache “fairly soon after” he experienced sharp pain in the incident. Dr Dalton prescribed Endep.
In a report dated just under a year after the incident, but with a referral date of 28 September 2020, Mr Bouzianis described Mr Barraclough as initially presenting for psychological treatment with complaint that included headaches.
In his statement made some two years after the incident, Mr Barraclough said in part:
“I manoeuvred the crowbar under the concrete slab, and as I did so I felt a sharp pain in my neck and right shoulder, and I subsequently developed a severe headache”.
At Telehealth assessment on 8 September 2021 Dr Dixon recorded circumstances of injury which included Mr Barraclough suffering severe headache in the incident that persisted, with Mr Barraclough consulting with Dr Ramachandra about a week after the incident. Mr Barraclough presented at assessment with Dr Dixon with complaint which included “severe recurrent chronic occipital headaches”. Following clinical examination and review of the medical information made available to him, Dr Dixon provided diagnosis of injury sustained in the incident which included “occipital migraine headaches” that were “causally related to the subject accident at work”. While I agree with Ms Goodman that Dr Dixon’s reasons going to the issue of causation could have been rather more extensive, Dr Dixon is an experienced independent medical examiner who has provided opinion over many years and in my view Dr Dixon had appropriate evidence before him when he formulated his opinion and is not required to “offer chapter and verse” in support of his opinion[22].
[22] Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89].
At assessment on 16 November 2021 while Dr Doig’s reported circumstances of injury did not include reference to Mr Barraclough suffering headache in the incident occurring on 20 January 2020, Dr Doig noted Mr Barraclough presented with complaint which included “cervico-genic headaches”. Following clinical examination, while Dr Doig reported Mr Barraclough was experiencing no neurological symptoms, he nevertheless provided opinion Mr Barraclough’s neurological symptoms “appear unrelated to this incident unless there is evidence available to the contrary”. I prefer opinion provided by Dr Dixon to that provided by Dr Doig as it appears apparent from a reading of the reports provided by Dr Dixon and Dr Doig that Dr Dixon’s opinion is grounded in a rather more comprehensive assessment of Mr Barraclough’s injuries and review of medical information made available than that provided by Dr Doig. I note too Mr Barraclough’s unchallenged comment that his assessment with Dr Dixon took “nearly an hour” whereas his assessment with Dr Doig took “less than 5 minutes”.
Mr Barraclough’s medical case is not without complexity and it is evident that despite significant investigation and consultation with a number of specialists, Mr Barraclough’s recovery from injury sustained on 20 January 2020 was desperately slow until he came under the specialist care of Dr Dalton following referral from Dr Neale. It is apparent from both Dr Dalton’s reporting and that of Mr Bouzianis, Mr Barraclough’s debilitating symptoms, including those appearing neurological in nature, improved under the care of Dr Dalton, with Mr Barraclough becoming capable to return to shearing work in March 2021.
I am of the view Mr Barraclough has provided a consistent and credible history of injury occurring on 20 January 2020 including the onset of headache, and I am of the view opinion provided by Dr Dixon demonstrates a causal connection between Mr Barraclough’s employment with AWCON and the onset of his headaches. While Ms Goodman argued Dr Ramchandra’s use of the phrase “worsening headaches” in his clinical records relevant to Mr Barraclough’s consultation with him on 28 January 2020 indicated a past history of headache that worsened in the incident occurring on 20 January 2020 there is no mention in any evidence before the Commission that Mr Barraclough has a past history of headache, and I do not accept Ms Goodman’s submission. Rather, I accept Mr Morgan’s submission that Dr Ramchandra’s use of the phrase “worsening headaches” in his clinical records relevant to Mr Barraclough’s consultation with him on 28 January 2020 may be reference to a worsening of the headache suffered by Mr Barraclough on 20 January 2020 during the weeklong period prior to Mr Barraclough consulting with Dr Ramchandra on 28 January 2020.
Although there appears to be no consensus as to diagnosis of the headache Mr Barraclough suffered on 20 January 2020 and subsequently, I accept Mr Barraclough has discharged
the onus of proof required of him and I am satisfied on the balance of probabilities Mr Barraclough sustained injury to his nervous system on 20 January 2020 in the course of his employment with AWCON, and that his employment with AWCON is a substantial contributing factor to injury.
Permanent impairment
Liability is not disputed for the injury Mr Barraclough sustained to his cervical spine and right shoulder on 20 January 2020 in the course of his employment with AWCON.
While I have determined Mr Barraclough did not sustain injury to his left shoulder on 20 January 2020 in the course of his employment with AWCON, I have determined Mr Barraclough sustained injury to his nervous system on 20 January 2020 in the course of his employment with AWCON and that his employment with AWCON was a substantial contributing factor to injury.
I consider it appropriate that Mr Barraclough’s claim for permanent impairment compensation payable under the 1987 Act resulting from injury sustained to his cervical spine, right upper extremity (shoulder) and nervous system on 20 January 2020 in the course of his employment with AWCON be remitted to the President for referral to a Medical Assessor for assessment of WPI.
I consider it appropriate that the following documents be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents, and
(b) Reply and attached documents.
SUMMARY
Liability is not disputed for the injury Mr Barraclough sustained to his cervical spine and right shoulder on 20 January 2020 in the course of his employment with AWCON.
I have determined Mr Barraclough did not sustain injury to his left shoulder on 20 January 2020 in the course of his employment with AWCON.
I have determined Mr Barraclough sustained injury to his nervous system on 20 January 2020 in the course of his employment with AWCON and that his employment with AWCON was a substantial contributing factor to injury.
Mr Barraclough’s claim for permanent impairment compensation payable under the 1987 Act resulting from injury sustained to his cervical spine, right upper extremity (shoulder) and nervous system on 20 January 2020 in the course of his employment with AWCON is to be remitted to the President for referral to a Medical Assessor for assessment of WPI.
The following documents are to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents, and
(b) Reply and attached documents.
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