Berry v State of New South Wales (Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Berry v State of New South Wales (Sydney Local Health District) [2023] NSWPIC 513
APPLICANT:	Melissa Berry
RESPONDENT:	State of New South Wales (Sydney Local Health District)
MEMBER:	Cameron Burge
DATE OF DECISION:	28 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; injuries by way of hearing loss and lumbar spine accepted and competing Independent Medical Examiners (IME) agree as to respective whole person impairment (WPI); alleged cervical spine injury disputed; applicant had cochlear implants in or about 2004; on 25 Feb 2021, she suffered a serious fall in the course of her employment, striking her head on the corner of a wall and relevantly injuring her head and lumbar spine; there is no issue the applicant suffered hearing loss and a lumbar spine injury in the fall at issue; the parties’ IMEs both assess 6% WPI from the hearing loss and 6% WPI form the lumbar spine injury; the alleged cervical spine injury is disputed; Held – on balance, the evidence discloses the applicant suffered an injury to her cervical spine in the incident at issue; although the applicant does not require corroboration to be accepted by the Commission and is regarded by all practitioners as an honest and reliable historian, corroboration of cervical spine symptoms is found in the physiotherapy notes from the weeks immediately following the injury; accordingly, the applicant’s cervical spine will be referred for medical assessment; a dispute arose as to the terms of any assessment; the applicant submitted the lumbar spine should also be referred, as there may be an interplay between the cervical impairment and that of the lumbar spine; the respondent submitted there was no dispute as to the lumbar impairment and accordingly it should not be referred; the referral will be only of the cervical spine, and the matter listed for further preliminary conference after the Medical Assessment Certificate is issued for the aggregation of any impairment to the cervical spine to the agreed impairment to the lumbar spine and that arising from loss of hearing.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injuries to her lumbar spine, hearing and cervical spine in the course of her employment with the respondent on 25 February 2021. 2. The claim for permanent impairment with respect to the cervical spine is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of injury: 25 February 2021 Body systems referred: cervical spine Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: a. this Certificate of Determination and Statement of Reasons; b. Application to Resolve a Dispute and attachments, and c. Reply served under cover of Application to Admit Late Documents (AALD) dated 17 August 2023 and attachments, and d. the respondent’s AALD dated 20 September 2023 and attachments. 4. Upon the assessment of the applicant’s permanent impairment to the cervical spine, the matter is to be listed for further preliminary conference before me with a view to the parties agreeing on the permanent impairment compensation payable when aggregating the cervical spine impairment with the agreed 6% whole person impairment to the lumbar spine and 6% whole person impairment for hearing loss.

STATEMENT OF REASONS

BACKGROUND

On 25 February 2021, the applicant Melissa Berry suffered a slip and fall on wet flooring at Royal Prince Alfred Hospital while in the course of her employment with the respondent, Sydney Local Health District.
As a result of that injury, there is no issue the applicant suffered injuries to her lumbar spine and a closed head injury which has led to binaural hearing loss. The applicant also claims to have suffered an injury to her cervical spine in the fall at issue, however, the respondent denies liability for any injury to the cervical spine.

ISSUES FOR DETERMINATION

The parties agree that the only substantive issue in dispute is whether the applicant suffered an injury to her cervical spine in the incident at issue.
Additionally, the parties have competing approaches to the terms of any referral in the event the applicant is successful on the claim for cervical spine injury. Both independent medical examiners (IMEs) have assessed the applicant as suffering a 6% whole person impairment to her lumbar spine. The applicant submitted that the lumbar spine should nevertheless be the subject of a referral as the interplay of the lumbar spine and cervical spine may impact on the Medical Assessor’s assessment of whole person impairment on the cervical spine. The respondent submitted there was no dispute in relation to the lumbar spine, as both parties’ medical experts had assessed the applicant as suffering from an identical degree of permanent impairment.

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 hearing on 26 September 2023. At the hearing, the applicant was represented by Mr Perry of counsel instructed by Ms Azer. The respondent was represented by Ms Balendra of counsel instructed by Mr King.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    Respondent’s Application to Admit Late Documents (AALD) and attached documents dated 20 September 2023.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury to her cervical spine

The applicant has the onus of proving she suffered an injury to her cervical spine in the fall at issue. In her statement, the applicant sets out the circumstances of the injury as follows:
“18. On 25 February 2021, I was at work. It is normal procedure that the hospital floors are cleaned at 6:30 am, and by the time I arrive at around 7:50 am, the floors are dry. On 25 February 2021, I noted that the sloped floor appeared damp, although no wet floor sign was present. Whilst walking towards my office from the kitchen, I slipped on the wet floor and landed on my right buttock area and back. During the fall, I also sustained a right fronto-temporal head injury right above my right eye.
19. My initial symptoms immediately after the fall included temporary loss of consciousness, a swollen and bleeding right eye, and back pain…
22. On 1 March 2021, I went to my general practitioner, Dr Hanaa Wanis. I told Dr Wanis that I had been injured at work and that I was experiencing severe back pain. Dr Wanis recommended I see a physiotherapist and gave me a medical certificate allowing me to take initially one week off work for recovery.”
For the respondent, Ms Balendra accepted the applicant as a witness of truth. She submitted the Commission is entitled to accept the applicant’s evidence, and it was telling that she did not include any complaints of neck pain in her statement attached to the application.
For the applicant, Mr Perry submitted the severe mechanism of injury in this matter made it perfectly plausible that the applicant suffered a neck injury. Mr Perry noted there was a serious impact on her head, sufficient to cause injury to her eye and also to worsen her pre-existing hearing loss.
The applicant was taken to the Emergency Department of Royal Prince Alfred Hospital where she was treated before returning home. On 1 March 2021, the applicant consulted her general practitioner, Dr Wanis. The records of Dr Wanis and her medical practice are in evidence before the Commission.
The record of the applicant’s visit to Dr Wanis on 1 March 2021 records the history of injury of the applicant slipping and hitting the corner of a wall with her head and right eye and elbow. At that presentation, the applicant complained of a painful lower back and residual soreness in her head including headache together with right shoulder and elbow pain and tinnitus.
The applicant again attended on Dr Wanis on 8 March 2021 with broadly consistent complaints, noting her right shoulder and elbow were improving.
On 10 March 2021, the respondent’s insurer wrote to Dr Wanis in relation to the applicant’s claim. Dr Wanis’ notes in reply to that inquiry listed the applicant’s issues as back pain and worsening hearing.
On 24 March 2021, the applicant attended upon Ms Chee, physiotherapist, to whom she had been referred by Dr Wanis. On that occasion, Ms Chee recorded a consistent mechanism of injury and noted the applicant had undergone a brain scan on 12 March 2021 as the pain behind her eye and tinnitus together with headaches were not improving. That history was made against a background of the applicant having cochlear implants in 2004. Of some import, Ms Chee’s notes also questioned whether the applicant may be suffering from “old whiplash injuries” from horse riding. Ms Chee described the applicant as “very much present[ing] like a whiplash injury of whole spine”.
On 26 March 2021, the applicant again presented to Ms Chee, at which time it was noted her dizziness felt worse on neck flexion and the treatment for her various complaints included “given neck exs to do re small ball and t-band/Bassett back support for car and chair”.
It is therefore apparent the applicant was complaining of neck issues in the weeks after the injurious event at issue. Whilst correlation is not causation, in my view the contemporaneous notes of the physiotherapist are consistent with the submission of Mr Perry that the primary concern in the treatment of the applicant in the immediate aftermath of the fall at issue was her closed head injury and worsening hearing loss together with her lower back injury. Nevertheless, the entries to which I have referred in my view are indicative of the applicant also complaining of neck problems immediately following the injurious event.
On 7 April 2021, the applicant again attended on Ms Chee for a physiotherapy consultation. That entry noted the applicant still suffered from tinnitus with headache/dizziness and nausea. Relevantly, the entry noted the applicant’s lower back pain was “a bit easier” and her “neck not as sore and stiff.” That entry is plainly consistent with the proposition the applicant had suffered an injury to her neck in the incident at issue and that it was still present, though not as bad as in the weeks prior. Ms Chee noted the applicant’s “whole spine is tight ++ re both sides of erector spine…”
The respondent’s IME, Dr Powell, provided several reports in this matter. He noted the applicant presented in a straightforward fashion and there was no evidence of abnormal illness behaviour or suggestion of overreaction or exaggeration. He noted the mechanism of injury suffered by the applicant which was consistent with the version of events provided to all other medical practitioners.
In relation to the cervical spine, Dr Powell stated in his report dated 28 November 2022 that “range of motion was mildly restricted with the extension half the normal range and rotation three-quarters of the normal range bilaterally, though normal forward and lateral flexion.” Dr Powell stated:
“It is possible Ms Berry may have sustained a minor soft tissue injury to the cervical spine in the subject incident on 25 February 2021, noting the mechanism of injury. The contemporaneous evidence indicates that she underwent an extensive series of investigations following the initial accident, including a large number of CT scans directed towards the thoracic spine, thorax, abdomen, pelvis and lumbar spine, though not the cervical spine.
Specialist review by Dr Suttor and Dr Sundaraj also appear to have been directed primarily towards the lumbar spine only.
Any injury to the cervical spine sustained in the manner described is likely to have been at the minor end of the spectrum. Clinical examination of the neck today was essentially unremarkable.”
When asked whether the applicant may have suffered an injury to her cervical spine by way of an aggravation of a pre-existing condition, Dr Powell said:
“Noting the history of previous symptoms and the presence of spondylitic change elsewhere in the axial skeleton, it is possible that Ms Berry does have some underlying degenerative pathology in the cervical spine which could have been aggravated in the subject incident.”
Dr Powell provided a supplementary report dated 19 September 2023 attached to the respondent’s AALD. In that report, Dr Powell was asked about his statement that it was possible the applicant sustained a minor soft tissue injury to the cervical spine and was asked whether there was any evidence to support that the worker sustained a cervical spine injury in the incident at issue. Dr Powell then replied:
“This comment was based primarily on the history provided to me by Ms Berry. She informed me that she struck her head against the wall in the initial fall and was aware of neck pain, though subsequent attention was directed primarily towards the lumbar spine…
Clinically, Ms Berry informed me that her neck continued to represent a source of intermittent symptoms in the intervening period between my examination and the subject incident, and clinical examination undertaken on 8 September 2022 revealed only mild restriction in range of motion with no localising signs or features of radiculopathy.
On the basis of the available information, I provided the opinion that it was reasonable to conclude that Ms Berry did sustain a minor soft tissue injury involving the cervical spine and the subject incident, though there was no other objective medical evidence available that I am aware of that would support that conclusion.”
Plainly, Dr Powell was not aware of the physiotherapy entries which revealed the applicant complaining of neck symptoms and being treated for them in the weeks immediately following the incident at issue.
Additionally, Dr Powell accepted the applicant’s history of the fall, noting she presented in a forthright and honest manner. In my view, the notes by Ms Chee, physiotherapist, regarding the applicant’s neck symptoms and the possibility of a whole of spine whiplash-type injury are consistent with Dr Powell’s opinion as to the applicant having suffered a soft tissue cervical spine injury in the fall at issue.
On balance, I am of the view that the medical evidence in this matter supports a finding that the applicant did suffer a cervical spine injury in the fall at work on 25 February 2021.
Although the applicant does not require corroboration in order to be accepted, a degree of corroboration is in fact provided by the physiotherapy records. The applicant’s credit is not in issue. All of the medical practitioners to whom she has presented have indicated she presents in an honest and forthright manner, and I have no difficulty in accepting that the histories provided to the practitioners by the applicant are honest and correct.
On balance, I am comfortably satisfied on the balance of probabilities that the applicant sustained a cervical spine injury in the course of her employment with the respondent on 25 February 2021.
Having made that finding, the question then arises as to the terms of the referral to the Medical Assessor. Mr Perry submitted the lumbar spine should also be referred as there may well be an interplay in terms of impairment between the cervical and lumbar spine for the Medical Assessor to make. Ms Balendra submitted there was no medical dispute in relation to the lumbar spine, as each of the IMEs retained by the parties agree there is a whole person impairment of 6% arising from that injury. She submitted a referral to a Medical Assessor in those circumstances would constitute an error.
In my view, the lumbar spine does not need to be referred to the Medical Assessor. The Medical Assessor is well able to assess the impairment to the cervical spine having regard to the applicant’s condition as a whole when they conduct their examination and noting the relevant material provided to them. In so doing, it is not necessary in my view for the Medical Assessor to undertake an assessment of the degree of impairment of the lumbar spine, which is a separate body system to the cervical spine.
In my view, it is therefore appropriate for the cervical spine to be referred to a Medical Assessor, noting the findings in relation to the lumbar spine and, upon the issuing of a Medical Assessment Certificate, listing the matter for further telephone conference with a view to the parties agreeing on the combined degree of impairment arising from any cervical spine assessment being added to the agreed 6% for the lumbar spine and 6% for hearing loss.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.

[2023] NSWPIC 513

28 September 2023