Bloor v J J Richards and Sons Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bloor v J J Richards and Sons Pty Ltd [2024] NSWPIC 211
APPLICANT:	Darren James Bloor
RESPONDENT:	J.J. Richards & Sons Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	26 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment regarding DVT pursuant to section 4(b)(i); applicant employed as garbage truck driver with respondent; only issue for determination is whether the applicant’s employment was the main contributing factor to the DVT, the presence of which is accepted; Held – the question of main contributing factor is one of causation, and the test is whether the applicant can establish employment was the main contributing factor to the development of the DVT after a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates and State Transit Authority of New South Wales v El-Achi applied; there can only be one “main contributing factor”, and as such the test for establishing employment as that one factor is more stringent than that for establishing work as “a substantial contributing factor” under section 9A; AV v AW followed; an evaluation of the lay and medical evidence in this matter establishes the applicant’s employment was the main contributing factor to the development of the DVT; that conclusion is supported not only by the applicant’s IME evidence, but that of his treating GP and specialists; on balance, those views are preferable to those of the respondent’s IME who, in part based his opinion on the mechanism of using the pedals on a truck to flex calf muscles; however, the pedals in the videos are different to those which the applicant used when driving; the documentary evidence shows the applicant spent large portions of long shifts in the one position while driving for the respondent; to the extent there is a contradiction between that documentary evidence and that of the respondent’s witness Mr Skinner, the documentary evidence which broadly supports the evidence of the applicant preferred; matter remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	FINDINGS AND ORDERS The Commission determines: 1. The applicant suffered an injury to his right lower extremity by way of deep vein thrombosis in the course of his employment with the respondent, with a deemed date of injury of 16 August 2020. 2. The matter 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: 16 August 2020 (deemed). Body systems referred: cardiovascular system. 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) Application to Resolve a Dispute and attachments; (b) Reply served under Application to Admit Late Documents dated 25 October 2023 and attachments; (c) respondent’s Application to Admit Late Documents and attachments dated 5 December 2023; (d) applicant’s Application to Admit Late Documents dated 10 January 2024; (e) applicant’s Application to Admit Late Documents dated 21 February 2024; (f) applicant’s Application to Admit Late Documents dated 5 March 2024; (g) respondent’s Application to Admit Late Documents dated 26 February 2024; (h) applicant’s Application to Admit Late Documents dated 5 March 2024, and (i) respondent’s Application to Admit Late Documents dated 6 March 2024.

STATEMENT OF REASONS

BACKGROUND

The applicant, Darren James Bloor is a 47-year-old man who alleges he suffered injury by way of deep vein thrombosis (DVT) whilst in the employ of the respondent, J.J. Richards & Sons Pty Ltd as a garbage truck driver.
The applicant alleges a deemed date of injury of 16 August 2020 and that his DVT was caused by the nature and conditions of his employment through driving his truck for long periods without a break.
There is no question the applicant suffered a DVT, however, the respondent denies liability pursuant to s 4(b) of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether the applicant’s employment was the main contributing factor to the development of the DVT.

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 before me on 18 January 2024 and 28 February 2024. At the hearing, the applicant was represented by Mr Hallion of counsel instructed by Mr Jones. The respondent was represented by Mr Stiles of counsel instructed by Mr Murray.

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 and attachments (Application);
(b)    Reply served under Application to Admit Late Documents (AALD) dated
25 October 2023 and attachments;
(c)    respondent’s AALD and attachments dated 5 December 2023;
(d)    applicant’s AALD and attachments dated 10 January 2024;
(e)    applicant’s AALD and attachments dated 21 February 2024;
(f)    applicant’s AALD and attachments dated 5 March 2024;
(g)    respondent’s AALD and attachments dated 26 February 2024;
(h)    applicant’s AALD and attachments dated 5 March 2024, and
(i)    respondent’s AALD and attachment dated 6 March 2024.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant’s employment was the main contributing factor to his DVT

The applicant carries the onus of proving that the development of his DVT is work-related. In the context of the current dispute, the question of whether the applicant suffered an injury by way of DVT is a question of causation, as there is no issue he developed the condition at issue.
In determining the cause of an injury, the Commission must apply a commonsense test of causation. In the workers’ compensation context, the appropriate test was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), where His Honour said:
“The result of the cases is that each case where causation is an 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 cause 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 death or injury will not, of themselves, 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.” (at 810)
In this matter, the applicant pleads his case as one of injury by way of disease process. Injury is relevantly defined in s 4 of the 1987 Act as follows:
“In this Act: injury…
(b)includes a ‘disease injury’, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
There is a slightly different test for causation in relation to disease injuries compared with injury simpliciter. In the latter case, a work injury is established if employment was a substantial contributing factor to the injury. However, in the case of disease injuries, employment must be the main contributing factor to the onset of the disease. As Deputy President Roche noted in State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71, it is for the Commission to determine, having regard to the whole of the evidence, the issue of injury and whether employment is the main contributing factor to that injury. As the Deputy President noted, the main contributing factor test is “one of causation”.
In AV v AW [2020] NSWWCCPD 9, Deputy President Snell noted the requirement in s 4(b) of the 1987 Act that employment be “the main contributing factor” permits the existence of only one such factor. Accordingly, the requirement of “the main contributing factor” involves a more stringent connection with the employment than the requirement of “a substantial contributing factor” which applied to disease injuries prior to the 2012 amendments.
In his statement, the applicant set out the nature and conditions of his employment from [17] and following. He alleges he worked on average between 8 to 10 hours per shift, and spent long hours sitting in his truck. At [24] of his statement, the applicant said “I spend long hours sitting in the truck. When I get out of the truck after each shift I really struggle.”
From [27] and following, the applicant gave evidence concerning the onset of his DVT:
“27    Circa in [sic] August 2020, I noticed strong pain in my right calf which progressively got worse; I could not sit down for too long I had to keep standing on my leg and put pressure on it to relieve it. My partner offered to massage it for me. I remember her saying ‘I hope this is not DVT.’ The pain got so bad. My doctors were shut at the time, so we went to consult my partner’s GP at Campbelltown Medical Centre. I saw a GP there and she took my blood pressure. It was through the roof. The GP advised me to attend the Emergency Department of Campbelltown Hospital.
28     I complied with her advice. At the ED, I had a CT scan which showed a little blood clot behind the right knee. However, I was informed that the machine was not working properly so I had to follow up with my GP. The doctor at Campbelltown Hospital asked me what I did for a living, and after hearing that I am a truck driver doing the residential bins, he said that is what has caused it. He said, ‘I have seen a lot of truck drivers with this condition.’
29     The following day, I went to see my regular GP, Dr Yousef at Macarthur Square Medical Centre. Dr Yousef sent me to Southwest Radiology for an ultrasound scan which showed that all three veins from my right knee to the foot were fully blocked with blood clots. At this stage, I lodged my workers’ compensation claim.
30     I was subsequently referred to Prof Dunlop, a haematology professor at Liverpool Hospital. The workers’ compensation insurer covered the cost of this consultation and the scans.
31     Dr Dunlop agreed with the ED doctor that my condition was work-related. He told me that DVT is common in truck drivers. Every time I had to see Dr Dunlop, I had to have a full blood pathology done and he also did a full set of blood tests towards the end to see if there was a medical reason for me to develop this condition. There is no history of blood clotting in my family, and those results came back clear. Dr Dunlop prescribed me rivaroxaban 20 mg which I was taking for six months.
32     Every doctor that I consulted agreed that my condition is work-related. I am always sitting down, and I get no proper blood circulation. So, after six months of treatment, everything was clear and I stopped taking rivaroxaban.
33     A month later (March or April), the pain came back. I left work early and went to see Dr Yousef who sent me for another ultrasound scan. The result showed that one of the veins was clotted again. I rang the insurance company, and they reopened my file with the same claim number. I was prescribed again rivaroxaban 20 mg and took it for another six months and after that, the dose was reduced to 10 mg which I took for a further six months. Dr Dunlop informed me that I would have to stay on the medication for life because of recurrence.”
For the respondent, Dr Truskett, independent medical examiner (IME) provided an opinion that the applicant’s operation of the accelerator and brake pedals in the truck which he drove for long periods would have been sufficient to obviate any potential DVT development. Dr Truskett maintained that position after seeing a video which formed part of the respondent's AALD lodged on 6 March 2024 showing the operation of the pedals in the cabin of one of the respondent’s garbage trucks.
Additionally, Mr Skinner, the applicant’s former manager provided a statutory declaration included in the Reply and dated 8 December 2022 in which he indicated the applicant’s role required him to exit and enter the truck multiple times per day, and that the applicant did not sit in the truck for extended periods of time and is required instead to frequently mobilise. However, it follows that as a manager, Mr Skinner cannot know the precise manner in which the applicant carries out his duties, as he is not present with the applicant during the course of his shifts. I do not say this is critical of Mr Skinner, whom I have no doubt has done his best to provide an accurate representation of his understanding of the applicant’s day-to-day tasks, however, where there is a discrepancy between the applicant’s evidence as to the nature and extent of his duties and that of Mr Skinner, I prefer the applicant’s version.
The matter is somewhat complicated by the report of the respondent’s former IME, Dr Lindeman, haematologist who provided two reports dated 6 November 2020 and 30 August 2021. In his first report, Dr Lindeman obtained an accurate medical history from the applicant and provided the following opinion of the applicant’s condition:
“In summary, Mr Bloor has had a right lower limb deep vein thrombosis extending distally from the popliteal vein. He remains anticoagulated with rivaroxaban and there is clinical and radiological evidence of resolution of the thrombosis (with residual thrombosis on the most recent ultrasound performed on 2/10/2020). There is no personal or family history of a thromboembolic tendency. Mr Bloor has not been wearing compression stocking…
Mr Bloor’s work as a truck driver may have been a contributor to his deep vein thrombosis. There is clear evidence of an increased risk of thromboembolic events in patients who have been on long haul flights. The evidence that driving for long periods of time predisposes to thrombosis is less strong, but some studies suggest an association…
I believe that Mr Bloor’s employment may have been a contributor to the development of his deep vein thrombosis. Underlying genetic factors and obesity may be additional contributors. I do not believe that it is definitively possible to conclude that Mr Bloor’s employment was the main contributing factor.”
When specifically asked whether there were any “aetiology factors that could have contributed to the development of deep vein thrombosis?”, Dr Lindeman replied:
“As already indicated above, prolonged travel and immobility in a vehicle are recognised as a modest predisposing factor for thromboembolic events, but with only a relatively low level of evidence for this assertion.
Prolonged sitting (such as might occur during attendance at a theatre, prolonged immobility, crouching or sitting at work) has been proposed as a risk factor for thrombosis. Lippi and Favaloro (Semin Thromb Hemost 2018: 327-333) have recently reviewed this area and comment that although the enhanced risk of VTE after long haul flights is widely acknowledged, there is less curtained regarding uninterrupted car travel. They comment that uninterrupted car journeys lasting four hours or longer in vehicles with a narrow seat pitch, may be a risk factor, particularly affecting in those with pre-existing acquired or inherited prothrombotic condition. The MEGA study (PLoS Med 2006) concluded that travel for more than four hours in the eight weeks preceding the event increased the risk of venous thrombosis twofold, with the highest risk in the first week after travelling, in those with a body mass index of more than 30 and in tall individuals, particularly when travelling by plane. This and other studies highlighted that long haul flights are a particular risk factor, with an odds ratio for VTE of approximately 4.”
In his second report, Dr Lindeman again noted a predisposition between long periods of driving and the onset of DVT. Dr Lindeman also noted that there is a causal link between obesity and DVT, which he also referred to in his first report, noting the applicant’s then weight was 120kg with a body mass index of 41.
Mr Hallion submitted that although Dr Lindeman did not go so far as to agree the applicant’s employment was the main contributing factor to his DVT, the doctor’s opinion provided a supportive basis for this being the case in that he accepted the risks for the onset of DVT associated with prolonged sitting.
Mr Hallion submitted to that extent Dr Lindeman’s view was consistent with that of Dr Niesche, the first IME of the applicant who provided a report on 17 June 2022. In that report, Dr Niesche noted:
“Contraction of calf muscles, such as in walking is necessary to maintain blood flow in the veins of the lower limb.
Immobility such as in long distance travel produces stasis or decreased blood flow with a tendency to form clots (DVT).
It has long been recognised that truck drivers, sitting for long periods in a confined space while driving for more than two hours without a break, are at increased risk of developing blood clots (DVT) in the lower limb.
Being very overweight is associated with an increased risk of developing DVT.
It is clear from his driving log prior to 16 August 2020 as reproduced from the report of Dr Lindeman dated 30 August 2021 and confirmed verbally by Mr Bloor, that he had daily periods of prolonged driving without a break.
With no previous history of DVT and in the absence of abnormalities on thrombophilia screen, it is more likely than not, that his driving was a significant contributing factor to the development of the initial DVT in August 2020, and was a significant contributing factor to his recurrence on 26 May 2021.”
When asked whether he agreed with the views of Dr Lindeman and why, Dr Niesche noted there had been a progression in the applicant’s symptoms since Dr Bloor’s examination, with a swelling to the right calf and evidence of early skin surface changes consistent with post-DVT. When specifically asked whether the applicant’s employment was the main contributing factor to the onset of DVT, Dr Niesche stated:
“Prior to his injury, there was no history of DVT and no evidence to suggest, in the absence of his employment that he would have developed a DVT at that same time.
Prolonged cramped sitting, immobility, and sitting still for more than two hours at a time, as occurs in truck drivers, increases the risk of developing DVT, and may occur even up to four weeks after the incident.
The sitting position may prevent adequate movement of the legs and reduce blood flow to the veins in the legs.
His obesity and the nature of his work as a truck driver, were risk factors for the development of DVT.
In view of the nature and time of his work, his employment was a main contributing factor to the injury of recurrent DVT.”
The applicant’s general practitioner (GP) provided a report to the respondent’s insurer on
21 October 2021. Relevantly, that correspondence stated:
“Mr Darren Blood is a 45yo male, who works as a truck driver for JJ Richards for the past few years. His role involved long commutes for up to 5 hours at a time, with minimal to no breaks in-between. At 5 hours they would need to a break a per company & road policy. This role is sedentary & involves prolonged immobilisation, moreso than any other work role he was involved in.
Of note Darren has been overweight since his early 20s, significantly more than his current weight -160kg at 21, which he has lost a substantial amount of. His last BMI prior to his DVT in 2019 was in the obese category between 35-40, of note he has a large amount of muscle bulk which obscures the simple standardised BM! calculation. He was a truck driver for the past 20 years , though work ed in a courier/ delivery driver role which involved regular movement & has not sustained any DVT or any other clotting pathology during this period.
Darren is otherwise well has no other co morbidities contributing to an increased clotting risk, is not on any other medication, nor has he had any other recent injuries or long distance travel that may contribute to clots.
1.      The diagnosis is of a Right Leg Deep Vein Thrombosis . This has presented with symptoms of significant Right calf pain & swelling. This initially occurred last year and was treated with anti coagulant therapy (Rivaoxaban) for 6 months. Symptoms resolved and the DVT was completely cleared. He had a second DVT this year when he continued normal duties at work These would be referred to as unprovoked D\/Ts if it were not for the prolonged immobilisation involved in his work role.
2.      Professor Dunlop conducted a through blood panel including a comprehensive thrombophilia screen looking for any predisposing or genetic anti coagulant deficiencies causing clotting; which was unremarkable. Furthermore Darren denies any family history of blood clots, though of not [sic] his family is all morbidly obese.
3.      There are many mild risk factors for DVTs, some of which include older age, the female gender, obesity, smoking etc . However they rarely independently cause DVTs unless compounded with major risk factors such as prolonged immobilization, cancer, surgery & the COCP . Other major risk factors can be identified in the well known Wells DVT Criteria.
Darren has no history of DVTs, no family history, never sustained one previously. Thus in the absence of his prolonged immobility as a truck driver it is extremely unlikely he would have experienced a unprovoked DVT. As per the Australian Institute of Health and Welfare 75% of Australian men were overweight or obese between 2017-2018. It is clear his baseline risk would be similar to the majority of the general Australian public.
Thus in light of the above, the negative thrombophilia screen & absence of other causes, it is evident to me that his sedentary role at work with prolonged immobilization directly caused his DVT.
4 .     As this is Darren’s second DVT he may require life long term anti coagulation as per his haematologist Professor Dunlop, though that will be left to his discretion. He also requires compression stockings to assist with prevention of post thrombotic syndrome, though it appears he has some ongoing calf pain which may be sign s of the aforementioned. He may also benefit from assistance with weight loss since he has gained weight since both DVTs.
The above incidents have had a negative impact of Mr Darren’s [sic] mental health & his weight. I would recommend care with his case, phone consultations with myself and other relevant specialists when information is required. if correspondence via fax is missed, as clinicians can often be swamped with paperwork particularly during COVID. I understand you have been chasing his haematology letters. I will provide all the information that I can.”

The clinical records contain a report dated 13 October 2020 from Dr Yeung, haematology registrar at Liverpool Hospital. In summarising the applicant’s condition, Dr Yeung said:
“I reviewed Mr Bloor today in clinic with Dr Dunlop for opinion and management of deep vein thrombosis. Mr Bloor is a 44 year old truck driver, with previous history of a gastric lap band and gastric sleeve more than five years ago. He also has gastro-oesophageal reflux. He is a non-smoker and a social drinker. He noted pain and swelling in his right calf in early August of this year, and a few weeks later was diagnosed with a popliteal deep vein thrombosis of 3.5cm in length. He also had a CT venogram which did not show any proximal extension, but did note diverticular disease. He was treated initially with rivaroxaban 15mg BO and had complications of per rectal bleeding with fresh blood a few days after commencement, but this has subsequently resolved and he is now on rivaroxaban 20mg daily. His symptoms of calf pain and swelling have resolved following anticoagulation therapy. He denies any provoking events prior to development of his symptoms, and has no prior personal nor family history of thrombosis. He denies any constitutional symptoms and there have been no concerns regarding malignancy.
On physical examination his right calf was slightly more swollen compared to his left, with no pain nor discolouration. Abdominal, respiratory and cardiovascular examinations were unremarkable.
Blood tests today demonstrated a white cell count of 7. 0xl09/L, haemoglobin 144g/L and platelet count of 189x109/L. Renal function and liver function tests were unremarkable. INR was elevated at 1. 9 with normal APTT 36 seconds, consistent with rivaroxaban effect. D-Dimer was within normal limits at 0. 10mg/L. Prothrombin gene mutation and factor V lei den mutation were negative. Antithrombin III, protein C and protein S were unremarkable. Cardiolipin and beta2 glycoprotein antibodies were negative. JAK2 mutation testing remains pending.
Overall Mr Bloor has had his first event of a lower limb deep vein thrombosis, which was likely provoked by periods of immobility related to his work. No other underlying thrombotic conditions have been identified thus far. We have advised him to continue rivaroxaban 20mg daily which he should complete at least three months of anticoagulation, at which point we will reassess the need for ongoing anticoagulation.”
That opinion, in my view, is significant. It is provided by a treating hospital registrar after review by a senior haematologist. It sets out an accurate recitation of predisposing factors, family and medical history and comprehensive findings on blood test examination. Having considered all of those matters, Dr Yeung provides a brief opinion as to causation, namely that the DVT weas likely provoked by periods of immobility in the course of the applicant’s employment. As a treater, Dr Yeung’s opinion is, in my view, entitled to considerable weight. He and Professor Dunlop have the advantage of treating the applicant over time, and whilst the report is not provided in a medicolegal context, it is in my view persuasive. It is also supported by the applicant’s GP and his IMEs.
The applicant provided a photograph of the pedals in the truck which he used to drive in his AALD dated 10 January 2024. The respondent provided a video of a worker pressing pedals in one of its garbage trucks in its AALD dated 6 March 2024. It is apparent on the face of these two documents that the pedals in the video supplied by the respondent and those referred to by the applicant as being from the trucks which he drove in the lead up to his injury are markedly different. In a supplementary statement dated 9 January 2024, the applicant referred to the truck pedals in the vehicles which he was driving as,
“up high, and you have to manoeuvre your whole leg from the accelerator to the brake. This is not an up and down movement that you use your calf muscle for, but an up and down muscle movement in which you use your thigh to elevate or lifting the foot onto the brake and/or accelerator.”
By contrast, the pedals in the video supplied by the respondent plainly go to the floor of the truck, and the mechanism for engaging those pedals is different to that which the applicant states he used in the course of his employment.
In my view, that is a significant discrepancy, because even were I to accept Dr Truskett’s view that the flexing of the applicant’s calf while using the pedals of a vehicle as indicated in the respondent’s video was a factor militating against the onset of DVT, the structure of the pedals on the vehicles which the applicant used is significantly different.
In my view, this is an important issue when one notes the video was provided to Dr Truskett and commented on by him in his report dated 26 February 2024. In that report, Dr Truskett said:
“I have reviewed the video provided which demonstrates the right lower limb of a male, depressing two foot pedals in the cabin of a vehicle. In the performance of these tasks, there is repetitive contraction of the calf muscles.
As stated in my report dated 10 October 2022, the main aetiology of DVT development if seated for long periods, is lack of calf muscle contraction, causing pooling of blood in the calf veins. This is clearly not the case in relation to Mr Bloor’s activity as a garbage truck driver. I reiterate, if anything, it will reduce his risk of DVT in the right calf.”
The difficulty with Dr Truskett’s opinion is the video upon which he relies in reaffirming his opinion plainly shows pedals which are different to those which the applicant states he was operating. That is not a criticism of Dr Truskett, who quite appropriately comments on the material provided to him. However, the pedals of which the applicant has provided a photograph in his AALD of 10 January 2024 are plainly consistent with the mechanism of operation which he described in his statement attached to the Application.
It is trite to say the opinion of an expert is only as sound as the assumptions upon which it is based. In this matter, Dr Truskett’s opinion is based upon the operation of a pedal mechanism which is significantly different to that which the applicant actually operated. The relevant difference is the pedals demonstrated in the video are attached to the floor of the cabin of the vehicle, whereas those which the applicant operated are plainly elevated from that floor, and, I find, would be operated consistent with the mechanism described by the applicant in his statement, namely the pumping with his whole leg onto the pedals rather than the flexing of his calf muscle.
In any event, the applicant relied upon a second IME, Dr Kirsch as his original IME, Dr Niesche had retired. In a report dated 20 February 2024, Dr Kirsch reviewed the relevant work and medical history, noting the applicant had no family history of DVT. Dr Kirsch indicated there were no predisposing factors to the onset of DVT “apart from the fact that he was driving for prolonged periods”.
Dr Kirsch was asked whether there was a connection between the applicant’s injuries and his present medical condition after the recurrence of the DVT and swelling to his calf, and replied “Mr Bloor has had recurrent deep venous thrombosis and this is directly related to the first episode of thrombosis”. When asked whether he agreed with the findings of the respondent’s IME, Dr Lindeman and why, Dr Kirsch addressed the question of the applicant pumping the pedals of his truck and said:
“I find that there is no question that the thrombosis is related to his work as a driver as he has been sitting for prolonged periods. Despite the fact that he is pushing a pedal, this is nowhere near enough to prevent thrombosis and his prolonged sitting is the key situation. Several studies have shown that thrombosis occurs with prolonged sitting and this is related to computer work but also with truck driving. Exercises that are meant to prevent thrombosis usually involve pumping the foot a minimum of four or five times per minute and this would not be the case with Mr Bloor as he would push the brake pedal and hold it or put on a brake and then operate the bin loader and then drive so his movement in his leg would not be adequate to prevent thrombosis.”
On balance, I am minded to accept the applicant’s evidence in relation to the nature and conditions of his employment, including prolonged sitting associated with lengthy periods of driving. That evidence is supported by his driving record and logs, which are set out in the medical evidence and are not contested by either party. They show, for example, the applicant was driving for between 8 hours and 10 hours 45 minutes over the course of five consecutive days as an example in early August 2020. As Mr Hallion noted in the 10 days upon which the respondent relies to say the applicant did not have to sit for prolonged periods, he was in fact required to sit for, on average over nine hours per shift. In my view, that evidence is inconsistent with the evidence of the applicant’s supervisor Mr Skinner, who, despite doing his best, has not accurately recounted the applicant’s duties.
I am, on balance, persuaded by the opinions of the applicant’s IMEs, Dr Niesche and Dr Kirsch, supported as they are by the GP and treating specialist Dr Yeung. I prefer their views to those of Dr Truskett, who has relied upon the video evidence supplied by the respondent to opine the flexing of the applicant’s calf muscle would have stopped the onset of DVT. As already noted, the pedals in the video are substantially and significantly different to those which the applicant had to operate. Although there is no question the applicant suffered from obesity, he also had never suffered from previous DVT. Likewise, all of the doctors are of the view there was no family history which predisposed him to the onset of the condition.
In my view, the evidence in this matter is overwhelming. On a commonsense basis, evaluating the totality of the lay and medical evidence, I am satisfied on the balance of probabilities that the applicant’s employment was the main contributing factor to the onset of his DVT.
This being so, and the only issue between the parties being that of causation, it follows that the matter will be remitted to the President for referral to a Medical Assessor to assess the degree of the applicant’s whole person impairment arising from the DVT suffered in the course of his employment with the respondent.

SUMMARY

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

[2024] NSWPIC 211

26 April 2024