BKS v Swissport Australia Pty Ltd ATF Aero-Care Flight Support Unit Trust
[2024] NSWPIC 407
•29 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BKS v Swissport Australia Pty Ltd ATF Aero-Care Flight Support Unit Trust [2024] NSWPIC 407 |
| APPLICANT: | BKS |
| RESPONDENT: | Swissport Australia Pty Ltd ATF Aero-Care Flight Support Unit Trust |
| MEMBER: | John Turner |
| DATE OF DECISION: | 29 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; dispute in respect to injury to the cervical spine; accepted injuries to left and right upper extremities; dispute in respect to referral of carpal tunnel syndrome to Medical Assessor for impairment assessment; claim pursuant to section 66 for permanent impairment compensation; Kooragang Cement Pty Ltd v Bates and Mason v Demasi considered and applied; Held – there is an award for the respondent in respect to injury to the cervical spine; the bilateral carpal tunnel syndrome to be referred to the Medical Assessor for assessment of impairment. |
| DETERMINATIONS MADE: | The Commission determines: 1. There is an award for the respondent in respect to injury to the cervical spine. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 30 January 2020 (deemed) – disease. Body systems / parts: left upper extremity (shoulder, wrist, complex regional pain syndrome and carpal tunnel syndrome), and right upper extremity (wrist, complex regional pain syndrome and carpal tunnel syndrome). Method of Assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) documents attached to Application to Admit Late Documents (AALD) lodged by the respondent dated 21 May 2024, and (d) documents attached to the AALD lodged by the applicant dated 17 May 2024, 4. The parties have seven days from the date of this Certificate of Determination to advise the Commission and the opposing party by email of any objection to any of the documents to be referred to the Medical Assessor under order 3 above. Any such objection is to be referred to me for determination. |
STATEMENT OF REASONS
BACKGROUND
[BKS], the applicant, was employed by Swissport Australia Pty Ltd ATF Aero-Care Flight Support Unit Trust, the respondent, as a baggage handler commencing employment with the respondent in or around April 2019.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury on the deemed date of 30 January 2020 to his cervical spine, left shoulder, both hands/wrists neuropathic pain and complex regional pain syndrome (CRPS) due to heavy, forceful and repetitive duties as a baggage handler at Sydney Airport requiring use of both hands, gripping, carrying, lifting, dragging, throwing, reaching, pushing, pulling of heavy luggage.
The applicant claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for impairment of the cervical spine, left upper extremity and right upper extremity.
There is no dispute that the applicant sustained injury to his left and right upper extremities.
On 25 June 2020 Dr Christopher Scott performed trigger finger release surgery on the applicant’s right ring finger as well as a cortisone injection to the left hand.
On 25 March 2021 Dr Chris Scott performed trigger release surgery on the applicant’s left index, middle, ring and little fingers as well as his right index, middle and little fingers.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the respondent disputes that the applicant sustained injury to his cervical spine as alleged, and
(b) the respondent disputes that the referral of bilateral carpal tunnel syndrome to an approved Medical Assessor for impairment assessment.
In respect to the referral to a Medical Assessor for assessment of impairment the parties agree to the referral of the left upper extremity (shoulder, wrist and CRPS), right upper extremity (wrist and CRPS) with a deemed date of injury (disease) of 30 January 2020.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation conference/arbitration hearing before me on
16 May 2024. Mr Dennis Epstein, counsel, instructed by Mr John Caristo, solicitor, appeared for the applicant, who was present. Ms Lyn Goodman, counsel, appeared for the respondent, instructed by Ms Fatma Zreika. The proceedings were conducted via MS TEAMS. 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’ submissions were unable to be completed in the time available on 16 May 2024 and Directions were made for written submissions.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) documents attached to Application to Admit Late Documents (AALD) lodged by the applicant dated 17 May 2024;
(d) documents attached to AALD lodged by the respondent dated 21 May 2024;
(e) documents attached to the AALD lodged by the applicant dated 21 May 2024, and
(f) documents attached to the AALD lodged by the applicant dated 27 May 2024.
In respect to the AALD lodged by the respondent on 21 May 2024 the applicant objected to the admission into evidence of the supplementary report of Dr Vera Kinzel dated
19 April 2024 which was enclosed at pages 1-2 of the late documents.The applicant objected to the supplementary report of Dr Kinzel on the basis that it has no relevance to the dispute in respect to the cervical spine as it deals with the treatment of the shoulder, and they had not had the opportunity to answer that issue.
The respondent pressed for the admission of the report into evidence on the basis that it is for the shoulder, and it is Dr Kinzel’s opinion as to whether the applicant has reached maximum medical improvement. Dr Kinzel had previously expressed the opinion that the applicant had not reached maximum medical improvement.
It was submitted on behalf of the applicant that Dr Kinzel had previously reached the opinion that the applicant had not reached maximum medical improvement on the basis that he needed to have a ganglion block however the applicant did not wish to have the suggested procedure.
The applicant objected on the basis that he had not had the opportunity to put on statement evidence and medical evidence in response.
The parties agreed that the said report of Dr Kinzel is only relevant to the Medical Assessor referral and was not relevant to the dispute in respect to injury to the cervical spine.
The respondent submitted that the report had in fact been served on the applicant a month prior to the conciliation conference/arbitration hearing and the applicant therefore had the opportunity to put on evidence in response.
I admitted the report of Dr Kinzel into evidence. The applicant was given leave to file a statement and medical evidence in response to the report.
Oral evidence
There were no applications made to adduce oral evidence.
FINDINGS AND REASONS
Injury to the cervical spine
The applicant alleges that he sustained injury on the deemed date of 30 January 2020 to his cervical spine, left shoulder, both hands/wrists neuropathic pain CRPS due to heavy, forceful and repetitive duties as a baggage handler at Sydney Airport requiring use of both hands, gripping, carrying, lifting, dragging, throwing, reaching, pushing, pulling of heavy luggage.
There is no dispute that the applicant sustained injury to her left and right upper extremities. The respondent disputes that the applicant has sustained injury to her cervical spine as alleged.
The applicant bears the onus of proving injury on the balance of probabilities.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
For the following reasons I am of the view that the evidence does not support that the applicant sustained injury to his cervical spine due to the nature and conditions of his employment as alleged.
It is the applicant’s evidence that prior to his employment with the respondent he had no pain injury or claims to his neck, shoulder, wrists or hands.
It is the applicant’s evidence that his work as a baggage handler with the respondent was physically heavy and repetitive involving the repetitive lifting, carrying, pushing, pulling, gripping, dragging, throwing and swinging of heavy luggage. There is no evidence that contradicts the applicant’s evidence and I accept the applicant’s evidence that his work duties with the respondent were heavy and repetitive.
It is the applicant’s evidence that in about June 2019, he felt pain and stiffness in both his hands as well as his left shoulder. That he reported this to a manager and took a day off to seek treatment. His right little finger was clicking and locking. Initially, it was his right-hand symptoms that were the worst. He received some treatment including a cortisone injection which was of some assistance and continued to perform his work duties with the respondent.
It is the applicant’s evidence that as the effect of the cortisone injection wore off, he felt spreading pain, numbness and stiffness in both his hands. Despite his symptoms he continued to work completing his normal duties. His right ring finger started to lock up. He had a further cortisone injection which provided some temporary relief. However, over time the pain stiffness and locking spread to other fingers.
It is the applicant’s evidence that over the Christmas period he was given another conveyor belt to operate which required the items, which were larger and heavier than usual, to be carried further which hurt his fingers, hands and neck.
It is the applicant’s evidence that he saw his general practitioner (GP) Dr Siddiqui on
31 January 2020. His recollection is that his main concern that day was his left shoulder, but he also had left sided neck pain following a lifting incident on 30 January 2020. It is the applicant’s evidence that he cannot recall if he mentioned to Dr Siddiqui his neck pain which in particular occurred when he turned to one side and he was also not able to fully extend his neck without severe pain.The applicant last worked for the respondent on 30 January 2020.
In my view the contemporaneous evidence does not support the applicant’s evidence that he developed neck symptoms on or prior to his last date of performing work duties for the respondent on 30 January 2020.
On 1 November 2023 the applicant’s GP, Dr Hamayoun Siddiqui, reported to the applicant’s solicitors that the applicant was first seen for his work related injuries on 31 January 2020 at which time the applicant reported that he had been having pain in both his hands for six months related to his work and that he had left shoulder pain which started at work on
30 January 2020. Dr Siddiqui reported that the first documentation of pain in the neck was on 8 March 2023. However, as will be discussed below, Dr Siddiqui did refer the applicant to
Dr Milan Brkljac on 22 March 2022 for opinion and management of neck and shoulder pain.Dr Siddiqui proposed that the delay in the reporting of neck symptoms could be due to the hand and shoulder pain being more significant, distracting the applicant from mentioning his neck pain earlier.
The clinical record of the applicant’s attendance on Dr Siddiqui on 31 January 2020 records that the applicant complained of pain in both hands and his left shoulder. The clinical record contains no mention of the applicant’s neck or cervical spine.
On 10 December 2020 Dr Ian Gotis-Graham, rheumatologist and consultant physician, reported to Dr Christopher Scott a history that the applicant started working as a baggage handler in early 2019 and that soon after starting he developed pain in his right 4th finger. Trigger finger was diagnosed. That in around December 2019 and January 2020, the applicant noted pain in his right hand involving his 3rd and 4th fingers and that in late January or February 2020, he injured his left shoulder at work.
Dr Gotis-Graham did not record any mention of any neck symptoms or injury to the neck.
On 29 March 2021 Dr James Yu, consultant anaesthetist and interventional pain specialist, reported to Dr Siddiqui that the applicant presented with persistent bilateral hand pain and left shoulder pain. Dr Yu records no mention of any neck injury or complaints.
On 5 August 2021 Dr Yu reported to Dr Siddiqui that he had spoken to the applicant and his rehab provider that day. The applicant had presented with persistent bilateral hand pain and left shoulder pain. Dr Yu again recorded no mention of any neck injury or complaints.
On 15 September 2021 Dr Siddiqui referred the applicant to Dr David Rosen for opinion, management, nerve conduction studies of both hands and assessment of neurology of both hands. In the referral Dr Siddiqui noted that the applicant had experienced pain in both hands for some time.
On 1 February 2022 Dr Rosen, neurologist, reported to Dr Siddiqui with a diagnosis of chronic neuropathic hand pain with mixed nociceptive and neuropathic features as well as mild non erosive tenosynovitis involving the joints and tendons of both hands.
Dr Rosen noted that the applicant presented with a history of chronic bilateral hand pain.
Dr Rosen as part of a detailed neurological examination noted that cervical mobility was unrestricted.
In the doctor’s opinion the applicant’s presentation was consistent with a chronic non-specific mixed neuropathic and nociceptive pain syndrome confined to both hands. In the doctor’s opinion it is likely that tenosynovitis/trigger fingers in 2020 initiated peripheral and central sensitisation.
Dr Rosen found no evidence for any other underlying neurological cause for the symptoms and doubted that the applicant had a compressive neuropathy. Dr Rosen observed that in the applicant’s case high cervical and craniocervical cord pathology would be unusual as there was an absence of neck pain or motor symptoms.
Dr Rosen did suggest some additional neurological investigations to exclude other causes and the applicant was referred for an MRI of the cervical spine.
By the time the applicant is examined by Dr Rosen approximately two years after he last performed physical work duties for the respondent as a baggage handler there is still no recorded complaint of injury to the neck or of neck symptoms.
The applicant is referred to Dr Rosen not because he has complained of neck symptoms or neck injury but due to his hand symptoms. Significantly Dr Rosen has undertaken a detailed neurological examination and in undertaking that examination has observed that cervical mobility was unrestricted and recorded that there was an absence of neck pain.
It was submitted on behalf of the applicant, by way of explanation for the delay in the reporting of any neck complaints, that the focus had been on the applicant’s hand and left shoulder conditions, and as Dr Siddiqui proposed the delay in the reporting of the neck symptoms could have been due to the hand and shoulder pain being more significant, distracting the applicant from mentioning his neck pain earlier.
I do not accept this submission. It is the applicant’s evidence that when he attended on
Dr Siddiqui on 31 January 2020, he was not able to fully extend his neck without “severe pain”. On the applicant’s evidence his neck symptoms were therefore of some significance. Following ceasing work duties at the end of January 2020 and prior to the applicant’s attendance on Dr Rosen the applicant has attended on Dr Siddiqui on multiple occasions as well as attending on other medical practitioners without any reference to any neck complaint being recorded. I find it extremely unlikely that if the applicant had been suffering from neck complaints that firstly he would not have reported those symptoms and secondly that they would not have been recorded at some point given the multiple attendance on multiple different doctors.It has been submitted on behalf of the applicant that the clinical records of Dr Siddiqui are unreliable as Dr Siddiqui in his report of 1 November 2023 recorded that the first documentation in respect to neck pain was on 8 March 2023, yet Dr Siddiqui referred the applicant to Dr Brkljac on 22 March 2022 for opinion and management of pain in the shoulders and neck. In making this submission the applicant referred to the decision in Mason v Demasi [2009] NSWCA 227 where Basten JA observed that inconsistencies in the clinical records should be treated with caution.
Whilst clinical records do need to be treated with caution, in this case there is multiple attendances on Dr Siddiqui for in excess of a two year period before there is any documented record of neck symptoms. If the applicant had complained of neck symptoms it is reasonable to expect that some sort of treatment would have been proposed but there is no such evidence until the referral to Dr Brkljac. Furthermore, the applicant had attended on other doctors during the period in question with no record of any complaints in respect to neck symptoms.
It was also submitted on behalf of the applicant, that the applicant’s evidence, that he informed Dr Siddiqui of his neck symptoms on 31 January 2020 should be accepted, however it is the applicant’s evidence that he cannot recall if he mentioned his neck pain to Dr Siddiqui on 31 January 2020.
Dr Rosen appears to have directly questioned the applicant in respect to any neck complaints with the applicant denying any neck pain and the doctor observing on examination a normal range of motion.
On 15 February 2022 Superscan reported to Dr Rosen in respect to an MRI scan of the cervical spine. The history recorded in the report is of “Chronic bilateral hand pain and weakness of grip.” The history does not mention neck pain.
On 3 March 2022 Dr Yu reported to Dr Siddiqui that he had spoken to the applicant that day. The applicant had presented with persistent bilateral hand pain as well as left shoulder pain. Dr Yu records no mention of any neck injury or neck symptoms even though the applicant had recently undergone a cervical MRI scan.
On 22 March 2022 Dr Siddiqui referred the applicant to Dr Milan Brkljac for opinion and management of pain in the shoulders and neck. This is the first reference which I have managed to locate in the medical evidence of any neck symptoms.
On 19 August 2022 Dr Siddiqui referred the applicant to Mr Jacob Abela of Kinetix Health and Performance for opinion and management of “work related” pain in the shoulders and neck, and scar tissue in the hands.
On 8 December 2022 Dr Rosen reported to Dr Siddiqui that the applicant had returned for follow up in respect of chronic bilateral hand neuropathic pain and left shoulder pain.
Dr Rosen reported that nerve conduction studies were consistent with mild carpal tunnel syndrome with no evidence of a peripheral neuropathy and a cervical spine MRI was reported as showing marked narrowing of the right exit foramen at the C4/5 level and at C5/6 bilateral exit foramen narrowing marked on the left and mild on the right.
In respect to the applicant’s symptoms Dr Rosen noted that the applicant complained of weakness of grip strength, non-specific pain and numbness in both hands not confined to any one nerve territory, electrical shooting pains in the hands, colour changes in the hands and that his hands felt cold.
On physical examination Dr Rosen noted that cervical mobility was unrestricted. No complaints of pain or any other symptoms were recorded in respect to the neck.
Dr Rosen did observe that the applicant has degenerative changes in his cervical spine with some foraminal narrowing but was of the opinion that the signs were not convincing for radiculopathy or for the cervical spine as a source of his pain.
Dr Rosen has therefore concluded that the applicant’s upper extremity symptoms are not related to any neck condition.
It is submitted on behalf of the applicant that little weight should be attributed to the opinion of Dr Rosen as he is a neurologist. This submission is not expanded upon. In my view
Dr Rosen as a neurologist is eminently qualified to undertake a neurological examination.Dr James Bodel, orthopaedic surgeon, provided a forensic medical report to the applicant dated 10 January 2023. Dr Bodel took a history that the applicant developed a gradual onset of pain in both hands and shoulders associated with the nature and conditions of his work duties.
The history taken by Dr Bodel as to the onset of neck symptoms is somewhat unclear and appears to place the onset after that of the hands and shoulders.
In Dr Bodel’s opinion the applicant developed neck pain as a result of the nature and conditions of his work as a baggage handler with the respondent. I do not accept the opinion of Dr Bodel as I am of the view that the evidence does not support that the applicant developed neck symptoms prior to the cessation of employment duties with the respondent as alleged.
For the above reasons I find that the applicant did not sustain an injury to the cervical spine as alleged.
Carpal tunnel syndrome
In respect to the referral to a Medical Assessor for assessment of impairment the parties agree to the referral of the left upper extremity (shoulder, wrist and CRPS), right upper extremity (wrist and CRPS) with a deemed date of injury (disease) of 30 January 2020.
The applicant also seeks referral for assessment of carpal tunnel syndrome for both upper extremities. The respondent disputes the referral of the carpal tunnel syndrome.
In the respondent’s submission there is no assessment of impairment in respect to carpal tunnel syndrome and therefore no claim has been made in respect to carpal tunnel syndrome. In the respondent’s submission there is no medical dispute in respect of carpal tunnel syndrome and therefore the Commission has no jurisdiction to determine any claim in respect of carpal tunnel syndrome. I do not accept the respondent’s submission for the following reasons.
Under cover of correspondence dated 15 March 2023 the applicant made a claim for permanent impairment compensation “in accordance with the assessments provided by
Dr Bodel” in his report dated 10 January 2023.Dr Bodel in his report of 10 January 2023 does not record a diagnosis of carpal tunnel syndrome. Dr Bodel relevantly records diagnosis of left shoulder rotator cuff pathology and neuropathic pain in both hands. Dr Bodel relevantly assessed impairment of both wrists based on loss of range of motion as well as assessing impairment of both upper extremities due to CRPS.
Having not provided a diagnosis of carpal tunnel in his first report of 10 January 2023,
Dr Bodel in a supplementary report dated 15 August 2023, confirmed that in his opinion the applicant has carpal tunnel syndrome. Significantly Dr Bodel did not see any reason to alter his impairment assessment for the carpal tunnel syndrome as that had been taken into consideration with the CRPS assessment.The supplementary report of Dr Bodel of 15 August 2023 was served on the respondent as part of an application for review dated 21 August 2023. The application for review was made in response to a notice issued on behalf of the respondent pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 9 June 2023 disputing liability for permanent impairment compensation in respect to the cervical spine.
On 5 September 2023 the respondent maintained and amended its dispute. In that dispute notice the respondent noted that the applicant had provided a supplementary report of
Dr Bodel dated 15 August 2023 as well as that Dr Bodel in that report had diagnosed carpal tunnel syndrome and that Dr Bodel had affirmed his previous assessment of permanent impairment.In this matter it is not the case that the applicant is seeking the assessment of an injury that has not previously been assessed and claimed or that the assessment was 0% whole person impairment.
Dr Bodel did not in his report of 10 January 2023 specifically record a diagnosis of carpal tunnel syndrome however the doctor did, according to his report of 15 August 2023, take the carpal tunnel syndrome into “consideration” in the assessment of the CRPS. No further impairment claim was required as the impairments flowing from the carpal tunnel syndromes had already been claimed having been subsumed within the assessments for CRPS.
It is not disputed that the applicant sustained injury to his hands and wrists.
The respondent has therefore been notified of the injury and the claim.
For the above reasons I am of the view that the referral to the Medical Assessor should include the bilateral carpal tunnel syndrome.
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