Brasz v Department of Ageing, Disability and Home Care
[2009] NSWWCCPD 62
•3 June 2009
| . | |||||
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Brasz v Department of Ageing, Disability and Home Care [2009] NSWWCCPD 62 | ||||
| APPELLANT: | Tamila Brasz | ||||
| RESPONDENT: | Department of Ageing, Disability and Home Care | ||||
| INSURER: | Allianz Australia Insurance Ltd | ||||
| FILE NUMBER: | A1-1722/08 | ||||
| ARBITRATOR: | Mr D. Minus | ||||
| DATE OF ARBITRATOR’S DECISION: | 20 February 2009 | ||||
| DATE OF APPEAL DECISION: | 3 June 2009 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | NSW Compensation Lawyers | |||
| Respondent: | McLean Lawyers | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 20 February 2009 is confirmed. | ||||
| Each party is to pay her or its own costs. | |||||
BACKGROUND
The worker, Ms Brasz, was employed as a service support officer with the Department of Ageing, Disability and Home Care (‘the Department’) at Marsden Hospital when, on 26 March 2007, a patient/client ran into her striking her right shoulder and the right side of her body. Ms Brasz alleges that as a result of this incident she sustained an injury to her right shoulder, neck, back and her right upper and lower limbs.
Her claim was not officially reported until 11 or 12 April 2007. On that day she reported the incident to her supervisor who recorded her injury to be a right shoulder strain as a result of being bumped by a client. Ms Brasz did not finally stop work until 18 April 2007.
On 11 September 2007 the Department’s insurer, Allianz Australia Insurance Limited (‘Allianz’), denied liability and compensation payments ceased shortly after that date.
Ms Brasz filed two separate Applications in the Commission. In the first, registered on 7 March 2008 (matter no. 1722/08), Ms Brasz sought weekly compensation from 11 September 2007 to date and continuing. In the second, registered on 9 May 2008 (matter no. 3470/08), she sought lump sum compensation in respect of an alleged 21 per cent whole person impairment as a result of the alleged injury to her cervical spine and right upper extremity. Each matter was listed before a different arbitrator and had been the subject of different orders relating to the referral of certain questions to an Approved Medical Specialist (‘AMS’).
The matters were listed before Arbitrator Mr D. Minus for teleconference on 7 October 2008 when he revoked all previous orders and requested the Registrar to direct that the matters in dispute in both matters be dealt with in the same proceedings (see Part 11, Rule 11.1(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’)). Ms Brasz was given leave to file an amended Application to Resolve a Dispute (‘the Application’), which was filed on 31 October 2008. The Department was given leave to file an amended Reply. The amended Reply was filed on 19 January 2009 and counsel for Ms Brasz acknowledged at the arbitration that he had received it (T26.45). He took no objection to the Department relying on it and the documents in it.
There is no record that the Registrar gave any direction under Rule 11.1(2) and the question as to how the matter or matters should proceed was debated at the arbitration on 27 January 2009. With the apparent consent of the parties, the Arbitrator ordered that the two matters be consolidated (T4.45).
The matter could not be resolved and it proceeded to arbitration. The critical issues in dispute between the parties were:
(a)whether Ms Brasz had injured her neck, back and right leg in the incident on 26 March 2007, or only injured her right shoulder, as argued by the Department;
(b)the nature and extent of any incapacity for work, and
(c)the quantum of any weekly compensation from 27 September 2007 to date and continuing.
In a reserved decision delivered on 20 February 2009, the Arbitrator found that Ms Brasz injured her right shoulder at work on 26 March 2007 and that “The injury to the cervical spine and the development of pain in the Applicant’s neck was a secondary condition for which [the] Applicant’s work was not a substantial contributing factor.” He then referred the matter to the Registrar for referral to an AMS for appropriate assessment of the degree of permanent impairment resulting from the injuries. The Arbitrator also requested that the AMS assess Ms Brasz’s capacity for employment and posed several specific questions for the AMS’s consideration.
By an appeal filed on 20 March 2009, Ms Brasz seeks leave to appeal the Arbitrator’s orders and determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is conceded that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
Although the appeal was not registered with the Commission until 24 March 2009, it was filed in the Commission and is date stamped 20 March 2009. Therefore, it was filed on the 28th day after the Certificate of Determination and is therefore within the time limit in section 352(4) of the 1998 Act.
Interlocutory
The Department submits that the decision Ms Brasz seeks to appeal is an interlocutory decision in that it is not a determination that finally determines the rights of the parties and is a preliminary ruling addressing only limited issues. I do not accept that submission. Whilst the Arbitrator’s determination has not resolved all of the issues in dispute in this case, the determination has effectively made an award for the respondent in respect of Ms Brasz’s allegation that she injured her neck on 26 March 2007 and has failed to make a determination in respect of the alleged injury to her back and right leg. Those findings are final determinations on injury that have determined Ms Brasz’s rights in respect of those parts of her claim (see P & O Ports Limited v Hawkins [2007] NSWWCCPD 87). In these circumstances, the order sought to be challenged is not an order of an interlocutory nature.
Leave to appeal is granted.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 20 February 2009, records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.There is an award for the Applicant in respect of the claim for permanent impairment and I determine that as a result of her employment, the Applicant suffered injury to her right upper extremity (shoulder) due to an injury on 23 March 2007. The injury to the cervical spine and the development of pain in the Applicant’s neck was a secondary condition for which Applicant’s work was not a substantial contributing factor.
2.I remit this file for the Registrar to organise an assessment by an Approved Medical Specialist (‘AMS’) of the degree of permanent impairment resulting from the Applicant’s injuries. The AMS is to note that only the injuries described are referred to the AMS for assessment. However, the AMS is also asked to consider the decision in the matter of Phillip John Carmody v. Merriman & Sons Pty Ltd [2003] NSW WCC PD 27 to the effect that an AMS may properly consider and assess a secondary impairment resulting from the frank injury that has been referred.
3.The AMS was also is requested to assess the Applicant’s capacity for employment as a result of her injuries. Namely:
(iii)Is the worker currently fit for pre-injury duties without restrictions?
(iv)If not, what restrictions need to be placed on the worker’s ability to do the pre-injury duties.
(v)Is the worker capable of returning to full time employment?
(vi)If not, is the worker fit for part-time work?
(vii)Is the worker fit for alternative employment?
(viii)If so, please specify what employment and what, if any, restrictions need to be placed on the worker in performing those alternative duties?
(ix)Is the worker totally unfit for all duties?
4.The Respondent is to pay the Applicant’s costs as agreed or assessed. I certify that this was a complex matter involving a careful consideration and presentation of the different medical diagnoses made by the various medical practitioners and determine that pursuant to Clause 11(a) of Schedule 6 of the Workers Compensation Regulation 2003 that in respect of the Applicants and Respondent’s costs that a percentage increase of 25% be applied.”
THE EVIDENCE
Ms Brasz’s Evidence
Ms Brasz’s evidence is set out in her statements of 28 February 2008 and 21 October 2008, and her letter to Allianz dated 29 June 2008.
She was born in the Ukraine in 1965 and came to Australia in 1991. She started work with the Department on 26 July 2004 as a services support officer. Her duties involved cleaning and serving food for clients with physical and intellectual disabilities at Marsden Hospital at Westmead.
On 26 March 2007, she was working in a unit identified as “Augusta Unit 5” at Westmead when a resident (referred to in several of the documents as a ‘client’) ran towards her and collided with her right shoulder and right side of her body. Ms Brasz states:
“On impact, I could feel a strong pain in my neck and right shoulder, however at the time I thought the pain would pass.”
The incident was not immediately reported and Ms Brasz completed her shift and went home. She did not work on the following two days as they were scheduled days off. She states that on the morning of 27 March, she awoke with “very strong pain” around her right shoulder and neck. The pain radiated into her back and right arm and hand (Ms Brasz’s statement 28 February 2008, paragraph 17). She states that the pain was so intense that she could not get out of bed. She took aspirin and spent half a day in bed “just trying to cope with the pain”. Ms Brasz returned to work on 29 March 2007, but states that she had “a lot of trouble coping” and took panadol to assist with her pain. She had difficulty lifting even small items and experienced pain throughout her right arm, underarm and hand area, and her fingers began feeling numb.
On 10 April 2007, Ms Brasz attended on Dr Ranasinghe, general practitioner, and was referred for an ultrasound on her right shoulder and given a certificate for two days off work. On the following day, she reported her injury to her supervisor, Mr McIver. She returned to work on 13 April 2007, but continued to have a lot of trouble coping with the pain in her neck and right shoulder. On 18 April 2007, she was unable to attend work because of her pain and she called in sick.
She was referred for physiotherapy in April 2007 (arranged by a different general practitioner, Dr Tcherkas) that caused an increase in her pain. At about that time she also experienced numbness radiating into her eyes and ears. Because of her symptoms, she consulted a different general practitioner, Dr Vo, who recommended that physiotherapy should cease.
Though her claim was initially accepted, she received notice on 11 September 2007 that her claim was denied and since “21 January 2008” [sic] her weekly payments were terminated. I assume this is an error and that compensation continued for two weeks after the date of the notice, though this is unclear because of conflicting evidence.
She maintains that since her injury she has continued to experience pain constantly through her neck and right shoulder areas and that her neck has felt “constantly like it is somehow out of place” (Ms Brasz’s statement of 28 February 2008, paragraph 25). She states that the pain and stiffness seem to go up into her right ear and that her neck clicks when she moves it. It also feels like something is “squashing” her around her neck and head area and, as a result, she finds it difficult to sleep. She also complains of pins and needles and numbness in her neck and difficulty trying to move her head.
The pain in her right shoulder, arm and hand has also continued and she experiences numbness and pins and needles in her right hand and arm. She complains that her right hand is very weak and that if she moves her right hand to the side or upwards, her right shoulder becomes very painful.
In her statement of 21 October 2008, Ms Brasz said that she was reluctant to report the accident, as she was fearful she might lose her job. She ultimately reported the incident two weeks after it occurred because she had continuing pain in her neck and right shoulder. She added (at paragraphs 8, 9 and 10):
“8. I have suffered from pain in my neck for the whole time but initially it was less than what was in my right shoulder and I was taking analgesia for the pain generally.
9. I do remember reporting to the medical officers who I saw that I was suffering from pains in my neck but that the pain in my shoulder was greater.
10. I do remember advising all the doctors I saw that I was suffering from pain in my shoulder but approximately 4 weeks after I reported the incident, the pain in my neck became much worse and I saw a doctor specifically for that pain.”
Ms Brasz’s Medical and Other Evidence
Clinical notes tendered from Dr Ranasinghe, general practitioner at Stanhope Medical Centre, Stanhope Gardens, reveal that Ms Brasz attended at 8.22am on Tuesday 10 April 2007. The notes record:
“Pain in right shoulder Worse on elevation of shoulder. Crepitus Ref for xray and US. Does cleaning job using mop frequently and recently more overtime causing the onset of pain.”
Ms Brasz again saw Dr Ranasinghe on 13 April 2007. The clinical notes for this day refer to “path test given. PH of cholecystectomy LFT: AFT and ALT slightly increased. Ref for US.”
On 18 April 2007, Ms Brasz attended on Dr Tcherkas, general practitioner at the Leichhardt Medical Centre. Dr Tcherkas’ notes for that attendance record the following:
“26.03 [sic] – accident at work with client who hit her on her R shoulder damaged her R shoulder.
Reported the problem last week to her Authorety [sic]
WC
Getting worse
D-s: Small partial thickness tear subscapularis tendon.
Needs WC”
Ms Brasz also saw a second doctor on 18 April 2007, Dr Asar, general practitioner at Nirimba Medical Centre at Quakers Hill. Dr Asar’s notes record the following for the attendance on that day:
“RT SHOULDER PAIN
H/O INJ
EXAM
FULL ROM RT SHOULDER
CLICKING JOINT +++
ROTATOR CUFF SIGN NEG
AWAITING XRAY AND US RESULT”
Ms Brasz underwent an ultrasound to her right shoulder on 18 April 2007, which revealed a small partial thickness tear of the subscapularis tendon.
Later that day Ms Brasz again saw Dr Asar to discuss the results of the ultrasound. The notes record that the ultrasound showed a partial tear in the subscapularis. Analgesics were prescribed.
The first medical certificate in evidence is also dated 18 April 2007 and is from Dr Tcherkas. Under “Diagnosis”, the doctor recorded in the certificate, “small partial thickness tear subscapularis tendon (confirmed by U/S 18.04.07)”. The management plan in the certificate stated that Ms Brasz was to be referred to an orthopaedic surgeon.
Mr McIver completed a “Notification of injury” form on 18 April 2007 in which he described the injury as “(R) shoulder strain” as a result of being “bumped by client”. The injury was reported to him on 12 April 2007.
Ms Brasz again attended on Dr Tcherkas on 20 April 2007 when they both signed a “General Practitioner Management Plan Authority”. Under the “Principle diagnoses”, the following is recorded:
“Weight problems (All)
Arthritis (All incl OA and Rheumatoi [sic])
Back complaints”
Under the subheading “Goals and needs for patients and carers”, the following is recorded in the authority:
“- Pain relief and mobility improvement of her R shoulder (after trauma)
- Reduce weight, reduce cardiovascular risks and improve fitness
- Pain relief and mobility improvement of her low back”
Ms Brasz appears to have prepared a document headed “Workplace injury report” on 24 April 2007. It is signed by her and by Wendy Lobley, an occupational health and safety rehabilitation officer from the Department, though it does not appear to be a formal document used by either the Department or Allianz. In it Ms Brasz described the injury as follows:
“Jugovic Manda supervisor Linen room open the door from unit to lunchroom, client run to the lunchroom then from lunchroom to the kitchen door and hit me to the right shoulder.
I did not report to Wilson Margaret initially on 26/03/07 because I thought it was no problem at first but next day and following days I had a lot of pain in my shoulder, arm, back and neck area. I thought it would go away but has still not gone away.”
Before Ms Brasz attended on an orthopaedic surgeon, she attended for physiotherapy at Stanhope PhysioCare on 26 April 2007. A document headed “Physiotherapy Assessment” is in evidence and records the following history:
“Client (disabled) ran into pt’s (R) shoulder anteriorly – 26/03/07”
The physiotherapy assessment also includes a diagram that includes shading to the right side of the neck, right shoulder and down the right arm to the fingers of the right hand. There is a notation “P & N” with an arrow pointing to the ring finger of the right hand.
Ms Brasz attended on Dr Tcherkas on 27 April 2007 and the doctor’s notes for that date record:
“Discussion of her R care [sic]
C/O R shoulder pain is getting worse/ Numbness of 3-5 right fingers/ Pain is going toowords [sic] all shoulder and to the R neck
No history of low back pain and or spine pain reported from the past
The spine problem happeneeed [sic] 26.03.07
Feels pain in her R ear/ to the eye
? Neck involvement”
On referral from Dr Tcherkas, Ms Brasz attended on Dr Nicholas Smith, a Fellow of the Royal Australian College of Surgeons specialising in hand and upper limb surgery, on 30 April 2007. Under “History”, Dr Smith recorded:
“She was injured at work on the 26 March 2007, at Marsden Hospital. This occurred when an inpatient collided with her injuring her right shoulder. There was no fall associated. The pain around the right shoulder girdle began insidiously. She has atypical features, including pain affecting her neck, face, arm, lateral shoulder, and dysaesthesis affecting the two ulnar digits.
She has found physiotherapy has increased her pain, which is of some concern for her future management.”
On examination, the right shoulder was stiff with reduced elevation and external rotation. Motion of the cervical spine was “slightly limited”. Dr Smith diagnosed “right upper extremity altered sensory processing, with right shoulder stiffness”. He referred Ms Brasz for a right shoulder MRI scan and to see Dr Dalton for ongoing management. There is no evidence that Ms Brasz ever saw Dr Dalton.
An MR arthrogram of the right shoulder was performed on 3 May 2007. It revealed a “Neer type 1 acromion with lateral downward sloping and visual structural impingement on the rotator cuff anterolaterally.”
Ms Brasz completed a formal Allianz claim form on 3 May 2007 in which she described her injury as “right shoulder, back, arm and neck area in pain”.
A second MRI of the right shoulder on 7 May 2007 commented that there was a chronic “Hill – Sachs lesion and a probably associated Bankart lesion” which changes were “presumably” related to “the previous dislocation of the shoulder.” Ms Brasz denies having ever dislocated her shoulder.
Ms Brasz again attended on Dr Tcherkas on 11 May 2007 when he noted her to be complaining of severe right shoulder pain which was work related after a collision with another person at work. His notes added “clinical presentation is suggestive of a soft tissue injury to her shoulder”.
Also on referral from Dr Tcherkas, Ms Brasz saw Dr Giblin, orthopaedic surgeon, on 14 May 2007. He took a history that Ms Brasz had pain in her right arm and neck “following an episode of direct trauma to her right shoulder at work 26th March 2007”. She had never had these problems before. He diagnosed her to have adhesive capsulitis. He added:
“The pain in the neck and interscapular area is referred as is the pain in her forearm.
She has very slight asymmetrical restriction of neck movements, and the deep tendon reflexes are preserved, equal and normal in her arms.”
He recommended that she be treated with “commonsense” and he showed her how to do her own home-based physiotherapy programme.
On 25 May 2007 Ms Brasz saw Dr Tcherkas. His notes record:
“Discussion of the problem
Upper neck neck [sic] ? neck problem/head?
Dr Giblin advised CT of her neck /head as advised
Referral to a neurologist
O/E Adjesive [sic, adhesive] capsulitis”
A cervical CT scan on 29 May 2007 revealed a “large central and right C5/6 disc protrusion possibly involving the right C6 nerve root” with moderate central C3/4 and C4/5 disc bulges.
Dr Giblin commented on the CT scan in a report on 20 June 2007 addressed to Dr Vo (a general practitioner who practices at the Stanhope Medical Centre with Dr Ranasinghe):
“As you know a CT scan on 29th May 2007 seems to show a very large right sided disc protrusion at C5/6.
This may be causing some impression not only on the nerve roots but also on the spinal column.”
Ms Brasz underwent cervical x-rays and a cervical MRI scan on 21 June 2007. The x-rays showed mild bilateral stenosis at C5/6 and disc degeneration at that level. The MRI scan revealed mild spondylotic changes. At the C5/6 level there was a broad based right paramedian osteopyte with associated disc material compressing the anterior aspect of the cord and the exiting right C6 nerve. The radiologist, Dr Gacs, concluded, “this appearance could account for the patient’s symptoms”.
Having reviewed the contents of the MRI scan, Dr Giblin thought it was prudent for Ms Brasz to be referred for a second opinion from a neurosurgeon. As a result, Dr Vo referred Ms Brasz to Dr Kam, neurosurgeon.
Dr Vo referred Ms Brasz to Dr Rail, neurologist, who reported on 9 July 2007 that Ms Brasz received a shoulder and neck injury when she was hit on the right shoulder by a patient at work on 26 March 2007. He recorded that she had “ongoing shoulder and neck spasm with [sic, which] spread into the right arm”. He also noted there had been tingling intermittently through the right arm and hand. He concluded that Ms Brasz had some radicular symptoms in her right arm “in relationship to the disc material and osteophyte”.
Dr Kam saw Ms Brasz on 6 September 2007 and reported to Dr Vo on the following day. He took a history that a client collided quite heavily with Ms Brasz’s right shoulder at work on 26 March 2007. Ms Brasz felt something was wrong with her shoulder and neck though did not report the incident immediately. The next day she felt more pain and discomfort involving her right shoulder, neck and arm. She also had symptoms involving her right upper extremity in the form of paraesthesiae and numbness.
In terms of Ms Brasz’s symptoms, Dr Kam recorded that she described a deep, dull ache and pain that would radiate into her right shoulder down into her hand. She felt that her right hand was a little weaker and she had trouble carrying anything in her right hand. She also described pain involving her face and the side of her neck (consistent with the diagram referred to earlier in the physiotherapy notes). Dr Kam also took a history of other symptoms and diagnoses which Ms Brasz felt she may have had. They included Parkinsons disease for tremors and shaking, trigemial neuralgia for the symptoms in the right side of face, glaucoma for the pain in her right eye and behind her left eye, kidney problems, urine infection and hepatitis C. None of these symptoms are alleged to have resulted from her injury and are merely included as part of Dr Kam’s history.
On examination, Dr Kam recorded Ms Brasz to have a good range of motion of her cervical spine. Muscle tone in the upper limbs was normal. Grip strength was slightly reduced on the right side and sensory examination was unremarkable. Deep tendon reflexes revealed a slightly reduced biceps jerk. Dr Kam concluded that Ms Brasz had signs and symptoms of cervical radiculopathy which was consistent with the MRI scan findings of the moderate sized disc bulge at the C5/6 level. He thought her symptoms appeared to be legitimate and that:
“It is possible that the disc herniation seen on the C5-6 level could be related to the impact of someone running into Mrs Brasz.”
Ms Brasz’s former solicitors qualified Dr Matalani, consultant occupational physician, who examined her and reported on 31 October 2007. He took a history that Ms Brasz felt her right shoulder and right-sided neck pain immediately when a client collided with her on 26 March 2007. Her neck pain persisted and she developed pins and needles in the fingers of her right hand. He also recorded her complaint of intermittent pain in the lower back with stiffness on awakening in the mornings. He did not record when the lower back pain commenced. He also took a history that her pain radiates into her right leg. He diagnosed that Ms Brasz suffered a soft-tissue injury and chronic musculo-ligamentous strain to her neck and back. He considered that the finding in the MRI scan of a C5/6 disc lesion with compression of the exiting right C6 nerve could account for her symptoms. Dr Matalani also recorded that Ms Brasz had been asymptomatic prior to her injury on 26 March 2007 and that her employment had been a substantial contributing factor “in the development of her current disability”.
Dr Giblin reviewed Ms Brasz on 8 July 2008 (report 9 July 2008) for medicolegal purposes and repeated the history noted in his initial reports. In addition, he noted an MRI scan of the right shoulder dated 3 July 2008, which reported an under surface tear of the supraspinatus tendon. After referring to Dr Kam’s report, Dr Giblin concluded:
“I agree with his opinion that the disc herniation at C5/6 could be related to the impact of somebody running into Ms Brasz. I also believe that is the explanation for her right shoulder symptoms.”
In respect of the Hill-Sachs lesion referred to in the 7 May 2007 MRI scan of the right shoulder, Dr Giblin noted that there was no previous history of symptoms or injuries to the right shoulder and he therefore viewed the radiological opinion as commenting on an artifact and therefore not holding any clinical consequence.
Dr Giblin saw the worker again on 16 September 2008 at the request of Dr Vago (a general practitioner who saw Ms Brasz in about October 2007) and reported to her solicitor on 5 November 2008. On examination, he observed a moderate restriction in an asymmetrical fashion in terms of active movements of Ms Brasz’s neck with some cervical muscle spasm. The right triceps jerk was “definitely depressed” (almost absent) to repeated testing and the right triceps muscle was somewhat weak compared to the left side.
In respect of the “apparent delay of about four weeks between the date of injury and the presentation of cervical symptoms”, Dr Giblin said:
“This may be explained in either of two mechanisms.
It is not usual [sic] for a minor soft tissue injury to a cervical spine to progress to a frank disc prolapse as noted at C5/6 on the scan in my previous report.
Also, a pre-existing asymptomatic disc bulge, can be rendered symptomatic by virtue of material damage in a sympathetic fashion in relation to an adjacent injury such as the shoulder.”
Dr Giblin’s final report is dated 20 November 2008, which he prepared in response to a letter from Ms Brasz’s solicitor (not in evidence) dated 19 November 2008. He stated:
“based upon this lady’s history in relation to her work environment, and the date of injury and the presentation of symptoms together with the underlying radiological findings to her neck, I believe it would be reasonable to assume a causal relationship between the subject accident and the apparent delayed onset of cervical symptoms which, are in keeping with the underlying radiological findings noted at C5/6. That is to say, her neck injury is directly related to her subject work accident.”
The Department’s Medical Evidence
The Department referred Ms Brasz to Mr Lazarus, occupational therapist with Australian Injury Management, for a functional capacity evaluation on 15 November 2007. Mr Lazarus took a consistent history of the work incident and that Ms Brasz did not immediately report the accident, as she thought her pain would go away. He added, however, that she reported pain in her right shoulder, back and neck area in the following days.
The Department also arranged for Ms Brasz to be examined by Dr Stewart, medical practitioner with HealthQuest, on 6 May 2008. In his report of 14 May 2008 Dr Stewart recorded that on 26 March 2007 Ms Brasz was “bumped into quite forcefully by a client and subsequently experienced strong pain in her neck and right shoulder”. She continued working but experienced increasing pain over the ensuing days and consulted her general practitioner on 10 April 2007. On examination, Ms Brasz demonstrated a very limited range of movement of her neck and reduced abduction of the right arm. There was also marked weakness of the right arm, though the finding was inconsistent, as she appeared to make little effort to use the arm. Upper limb reflexes and tone were within normal limits. Sensation proved difficult to assess and appeared inconsistent. Dr Stewart noted the contents of the MRI scan and concluded that the disc protrusion at C5/6 “may be causing some compression of the nerve root”.
Allianz arranged for Ms Brasz to be examined by Dr Assem, consultant in rehabilitation medicine, on 24 August 2007 and 14 March 2008. For reasons that have not been explained, page three of Dr Assem’s first report is not in evidence.
In his first report, Dr Assem recorded that a client struck Ms Brasz on her right shoulder on 26 March 2007 and that there was no initial discomfort but she felt “something had happened”. She stated that she gradually developed symptoms in her right shoulder and the right side of her neck that progressively increased in severity, prompting her to seek medical attention on 10 April 2007.
As to Ms Brasz’s current condition, Dr Assem concluded that she sustained a minor soft tissue injury to her right shoulder and later developed adhesive capsulitis which settled. She also had discomfort in the right side of her neck that also subsided. Dealing specifically with a question about causation, the doctor added (at page five):
“Ms Brasz had a relatively trivial injury to her right shoulder that did not cause any structural derangement. She later developed adhesive capsulitis which is usually a constitutional condition but can occur following trauma. If she is given the benefit of the doubt, her employment may have contributed to the development of adhesive capsulitis. However, she has now regained a full pain-free range of movement and strength.
Radiological imaging demonstrated a chronic Hill-Sachs lesion. This lesion identified usually occurs following a previous shoulder dislocation although this was denied by Ms Brasz.
There was no significant injury to the cervical spine following the trivial incident described. It is possible that she may have temporarily aggravated underlying age-related degenerative changes. This aggravation has now subsided as she has a full pain-free range of motion. She no longer has any radicular symptoms.”
In answer to a question as to whether he believed the reported mechanism of injury was significant enough to cause a shoulder injury and a cervical disc protrusion, Dr Assem repeated that the mechanism of injury described was relatively trivial and would only have caused a minor soft tissue injury. There was no immediate discomfort and it did not interfere with Ms Brasz’s ability to perform her normal duties. Giving Ms Brasz the benefit of the doubt, the injury may have contributed to the development of right shoulder adhesive capsulitis which had resolved by the time of Dr Assem’s examination. It may also have temporarily aggravated an underlying cervical disc lesion “that has also subsided”.
In March 2008, Dr Assem recorded that Ms Brasz’s condition had deteriorated and that she complained of constant pain in the right side of her neck and paraesthesia involving the entire right upper extremity. At one stage there was paraesthesia involving her entire body including both lower limbs. He also recorded a complaint of pain in the left shoulder. There was sometimes numbness involving the right third, fourth and fifth fingers that sometimes involved the entire hand.
On examination, Dr Assem recorded that cervical movements were globally restricted to half normal range in all directions though there was no tenderness on palpation and no muscle guarding or spasm. He observed slight drooping of the right shoulder. There was also a slight clicking sensation in the right shoulder. The “apprehension tests” were positive and active movement of the shoulder was slightly reduced. Neurological examination of the upper limbs was normal. Her grip strength was measured to be nil on the right and 5kg on the left indicating a lack of co-operation. Dr Assem essentially repeated the conclusions he reached in his August 2007 report and reiterated that at the time of his first assessment her neck symptoms had subsided and that she had a full range of cervical movements. He felt that her symptoms were atypical and could not be explained on the basis of the incident described. He also noted the inconsistencies in the histories provided to different medical practitioners and on clinical examination.
Under “Diagnosis”, he added (at page five):
“The diagnosis is consistent with a soft tissue injury to her right shoulder that may have been complicated by the development of adhesive capsulitis. There is evidence of a previous shoulder dislocation on radiological imaging that has resulted in some shoulder instability.
She also has right sided neck discomfort secondary to degenerative disc disease in the cervical spine with a right C5/6 disc protrusion. She has somatic symptoms in her right upper extremity that do not correspond with any specific dermatomal pattern. There is no objective evidence of a neurological deficit and neural tension signs were negative.
Her condition is confounded by the presence of vague atypical symptoms and underlying anxiety. The global sensory loss involving her entire right upper extremity and both lower extremities would indicate the presence of somatoform disorder.”
Dr Assem concluded that Ms Brasz was fit for her pre-injury duties, but would most likely require permanently modified duties with regards to the constitutional degenerative pathology identified in her cervical spine. He felt that she should avoid lifting more than 10 to 15 kgs and avoid repetitive or sustained upper limb activities above shoulder height.
In response to Dr Assem’s March 2008 report, Ms Brasz wrote to Allianz on 29 June 2008 challenging many of his assertions. In particular she disputed the following:
(a)that she had no discomfort at the time of the accident;
(b)that she developed a “gradual onset” of discomfort;
(c)that she had ever dislocated her right shoulder;
(d)that she was fit for work;
(e)that her pain had subsided. She stated that her pain had subsided but it had “definitely not gone” and the pain in the right side of her neck “has always been there”;
(f)that she showed no apparent distress at the examination. The doctor asked her “why are you so stressed?” to which Ms Brasz replied that her shoulder was collapsing and she needed an operation for her neck, and
(g)that she had declined surgical intervention. She is scared of it as she has been made aware of the possible negative side effects.
In response to Ms Brasz’s letter, Dr Assem prepared a further report on 8 July 2008 making the following observations:
(a)after repeating the history (disputed by Ms Brasz) that she did not experience any discomfort immediately following the incident, Dr Assem added that whether she gradually developed pain several days later or suddenly developed pain was irrelevant, as it was inconsistent with the mechanism of injury described and was indicative of a constitutional disorder unrelated to her employment;
(b)he acknowledged that Ms Brasz denied any previous shoulder injury or complaint;
(c)Dr Kam correctly concluded that her symptoms were “atypical and extremely unlikely” to be related to the impact she sustained following the incident at work;
(d)Ms Brasz’s claim that she could only lift 1kg was not realistic. She was not totally incapacitated as a result of the relatively trivial incident that occurred at work;
(e)Ms Brasz did not appear to be in any physical distress at the time of his assessment but she was certainly an anxious lady who was pain focused with symptoms and signs disproportionate to the pathology demonstrated;
(f)he obtained a history on two separate occasions that there was no discomfort noted initially after the injury. He would not have expected any discomfort or structural derangement from the incident described;
(g)there was no evidence of a recent injury, rotator cuff pathology or even tendonitis and there was no medical reason why she could not resume her normal duties. Due to her ongoing complaints, self reported limitations and associated psychological issues, he suggested that she should initially return to work on suitable duties at her pre-injury hours with a lifting restriction of 10 to 15 kgs and no repetitive or sustained work above shoulder height;
(h)the fluctuating nature of her symptoms without any identifiable aggravating factor was inconsistent with that of a musculoskeletal injury. She has concurrent medical issues requiring numerous investigations and resulting in significant psychological distress. Her complaints were vague, ill-defined, over-dramatised and inconsistent with an injury or known organic pathology and were suggestive of a psychosomatic disorder or malingering, and
(i)his opinion remained unchanged.
THE ARBITRATOR’S REASONS
After reviewing the evidence, the Arbitrator made the following observations and findings in his Statement of Reasons for Decision (‘Reasons’):
(a)none of the five doctors (three general practitioners and two specialists) Ms Brasz consulted in the four weeks following 26 March 2007 recorded in their notes that she experienced pain in her neck as a result of her injury;
(b)Ms Brasz and Dr Tcherkas jointly signed a Management Plan Authority on 20 April 2007 that identified the issue “as related to her right shoulder injury only” (Reasons, at [33]) with no mention of any pain or difficulty with the neck at that time. Given that Ms Brasz has been an effective advocate in her own case and has been able to write and express herself clearly in English, it is unlikely she was overborne by Dr Tcherkas in describing her case in that limited way (Reasons, at [33]);
(c)Dr Tcherkas’ reference in his notes on 27 April 2007 to the pain going “to the right neck” (emphasis included) seemed to indicate that the neck was not the originating site of the pain. His notation about the neck pain was then followed by a question mark (Reasons, at [34]);
(d)he accepted that Ms Brasz was asymptomatic with respect to the pain in her neck prior to the incident (Reasons, at [35]);
(e)he accepted the Department’s submission that the shading on the physiotherapist’s diagram was only on the right side and did not otherwise explain Ms Brasz’s current condition of total pain in the neck (Reasons, at [35]);
(f)in his first report (dated 14 May 2007), Dr Giblin suggested that the mechanism causing pain in Ms Brasz’s neck was “referred”. The Arbitrator interpreted that to mean ‘referred from the shoulder’. The Arbitrator considered that mechanism to be the most reasonable suggestion for the cause of Ms Brasz’s neck pain. Dr Giblin’s report of 9 July 2008 and Dr Matalani’s report of 31 October 2007 only offered tentative support that the neck pain was a result of the “C6/C7 [sic] lesion which was identified on imaging” (Reasons, at [36]);
(g)the significant and telling issue in the case was the delay in reporting symptoms in the neck for a period of approximately four weeks. Dr Giblin’s explanation for the delay is more in the manner of an “oracular pronouncement by an expert” or an “ipse dixit” (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) at [87]) than a conclusion offered on the basis of the evidence that can be tested and proven by the trial of fact (Reasons, at [37]);
(h)the MRI scan shows osteophytes at the C3/4, C4/5, C5/6 and C6/7 levels. The development of osteophytes would appear to be indicative of the development of degenerative disease, which, although previously asymptomatic, would have been of longstanding (Reasons, at [38]);
(i)Ms Brasz did not sustain an injury to her cervical spine as a result of the impact with a patient that occurred on 26 March 2007. There was no direct impact to the neck, only the right shoulder, which was the only injury she reported to her supervisor and her numerous doctors for the next four weeks (Reasons, at [39]), and
(j)though Ms Brasz now experiences pain in her cervical spine it is better classified as due to the underlying age-related degenerative disc disease in her cervical spine. It is therefore not an injury for which her employment was a substantial contributing factor.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to “have proper regard to the evidence in determining the issue of neck ‘injury’ and section 9A” of the Workers Compensation Act 1987 (‘the 1987 Act’), and
(b) failing to consider the claims for injury to back and right leg.
SUBMISSIONS
It is submitted on behalf of Ms Brasz that:
(a)the Arbitrator erred by failing to have proper regard to the evidence in determining the issue of neck “injury” and section 9A;
(b)reference is made to Ms Brasz complaining of neck pain to Dr Tcherkas on 27 April 2007, in her claim form on 3 May 2007, and to Dr Giblin on 14 May 2007;
(c)reference is made to the MRI scan of 21 June 2007 which revealed a large paramedian osteophyte with associated disc material compressing the right side of the cord possibly compromising the exiting right C6 nerve;
(d)Dr Assem accepted it was possible that Ms Brasz temporarily aggravated underlying age-related degenerative changes in her cervical spine at work;
(e)Dr Giblin’s reports of 5 and 20 November 2008 comment on the causal connection between the work incident and the neck injury;
(f)the Arbitrator failed to comment on the worker’s unchallenged evidence of ongoing neck pain and symptoms and the Department did not seek to cross-examine her or otherwise question her credit;
(g)the Arbitrator accepted the worker’s complaint to a physiotherapist on 26 April 2007 of right sided neck pain, but then inconsistently found that there was no neck injury as the worker now complains of total pain in the neck. The worker and the radiological investigations confirm the complaints and pathology related to the right side of the cervical spine;
(h)the Arbitrator placed undue emphasis on the four week delay in reporting the neck symptoms to either the physiotherapist or to Dr Tcherkas. The Arbitrator failed to consider the support provided by Dr Assem of a temporary aggravation of degenerative disease in the cervical spine. When Dr Assem’s report is read with the supplementary reports from Dr Giblin there is ample evidence to causally relate the worker’s neck symptoms to the work accident;
(i)the Arbitrator erred in finding that Ms Brasz’s previously asymptomatic condition was entirely related to age-related degenerative disease in the absence of evidence of some other cause or challenges to her credit, and
(j)the Arbitrator failed to address the issue of “injury” to the back (or lumbar spine) and the right leg.
It is submitted on behalf of the Department that:
(a)there is no evidence corroborating Ms Brasz’s allegation that she injured her neck on 26 March 2007 and it was not contested at the arbitration that she did not complain of neck pain until 27 April 2007 when she saw Dr Tcherkas;
(b)the finding that Ms Brasz’s employment was not a substantial contributing factor to the injury to her neck was open to the Arbitrator on the evidence and should not be disturbed;
(c)it is conceded that the Arbitrator made no findings in relation to the worker’s allegation that she injured her back and right leg on 26 March 2007;
(d)there is no contemporaneous complaint by Ms Brasz of the injury to or pain in her back and right leg. None of her treating doctors have mentioned a back or right leg injury in any of the certificates that have been provided in support of her claim;
(e)Ms Brasz made no complaint of any back injury or back pain to Drs Giblin, Rail or Kam;
(f)there are no radiological investigations of Ms Brasz’s back, and
(g)Ms Brasz made no complaint of any back injury to Dr Assem.
DISCUSSION AND FINDINGS
The Arbitrator correctly identified the critical issue in this case, namely, whether Ms Brasz injured her neck and back on 26 March 2007. The evidence is overwhelmingly against Ms Brasz’s assertion that she experienced neck pain on 26 March 2007. Her emphatic assertion that she did experience neck pain on that day is contrary to every piece of objective evidence from her treating general practitioners in the first four weeks after 26 March 2007 and the notification of injury form dated 18 April 2007. The first doctor she saw after 26 March 2007 (Dr Ranasinghe, on 10 April 2007) had no history of any injury on 26 March 2007, but had a history that Ms Brasz used a mop frequently and of recent overtime “causing the onset of pain”. Though it has not been argued, this history puts in doubt whether Ms Brasz even experienced shoulder pain on 26 March 2007. Ms Brasz saw Dr Ranasinghe again on 13 April 2007 and again there is no record of any work incident on 26 March 2007.
I agree with the Arbitrator that Ms Brasz has been a strong advocate in her case and it is unlikely that Dr Tcherkas would have overborne her in describing her case in the limited way that appears on the Management Plan Authority signed by her and the doctor on 20 April 2007. That document, and the general practitioners’ clinical records in general, contradicts Ms Brasz’s evidence that she reported to all her medical officers that she was suffering from pain in her neck but the pain in her shoulder was greater (Ms Brasz’s statement 21 October 2008, paragraph 9). It is demonstrably clear that she did not mention any neck symptoms to her doctors for several weeks after the incident.
Her assertion that she reported the incident two weeks after it occurred because she had continuing pain in her shoulder and neck is also contradicted by the objective evidence in the notification of injury form, which only refers to a right shoulder strain. Her assertion that she told her doctors that she had pain in her neck, but her shoulder pain was greater, is also inconsistent with the clinical notes from her treating general practitioners.
Dr Ranasinghe’s note on 10 April 2007 that Ms Brasz had “recently [done] more overtime” also contradicts Ms Brasz’s evidence that she had a lot of trouble coping at work in the weeks following the incident because of her pain.
These inconsistencies and contradictions seriously undermine Ms Brasz’s case and raise real issues as to her reliability and credibility. In light of them, I do not accept her evidence as to when her neck symptoms commenced or her evidence as to the difficulties she claims to have experienced at work up to 18 April 2007.
The first reference to neck pain is in the workplace injury report dated 24 April 2007, which is signed by Ms Brasz and Wendy Lobley. Whilst this document provides an explanation for the delay in reporting the incident, it does not explain the lack of complaint of neck pain to the several doctors Ms Brasz saw up to that time.
The physiotherapist’s diagram prepared on 26 April 2007 indicates the presence of symptoms in the right side of Ms Brasz’s neck and down her right arm into her hand, with pins and needles (described as “P & N” in the diagram) in the right hand. There is no expert evidence to explain the significance of the diagram in the light of an accurate history of when those symptoms commenced. The only history from the physiotherapist is that a client ran into the anterior side of Ms Brasz’s shoulder.
Whilst the Arbitrator found Dr Tcherkas’ entry on 27 April 2007 (which refers to pain going “towards all shoulder and to the R neck”) to be significant, I do not place any particular weight on that entry, even though Dr Giblin stated that the neck pain and forearm pain were “referred”. What is more important is that Dr Tcherkas did not record any history of Ms Brasz injuring her neck on 26 March 2007. The first medical certificate referring to neck pain is from Dr Tcherkas on 25 May 2007.
Whilst Dr Matalani’s opinion is supportive of the connection between all of Ms Brasz’s symptoms and the work incident, and that employment was a substantial contributing factor to the “current disability”, that opinion is based on an incorrect history, namely, that her neck pain started on 26 March 2007, and, as a result, it is of significantly diminished weight. I do not accept it.
Dr Giblin’s evidence requires careful consideration. He initially had the incorrect history that the neck symptoms started immediately after the incident on 26 March 2007. Armed with that history, he agreed with Dr Kam’s opinion (also based on the same incorrect history) that the disc herniation at C5/6 “could be related to the impact of somebody running into Ms Brasz” (emphasis added) (Dr Giblin’s report of 9 July 2008, page three and Dr Kam’s report of 10 September 2007 at page three). Thus, even with a history that the neck pain started immediately after the incident, both Dr Giblin and Dr Kam assessed the link between the injury and the pathology as no more than a possibility.
The burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists (see Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [80]). However, as noted by McDougall JA (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (at [61]), “the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists.” Such an inference is not open in the present case because the assumption on which Dr Giblin and Dr Kam based their assertions of a possible connection (that the neck symptoms started on 26 March 2007) is incorrect.
After being asked to assume that there was a delay of about four weeks between the date of injury and the presentation of the cervical spine symptoms, Dr Giblin concluded that the delay could be explained by either of two “mechanisms”. Neither is convincing and neither is fully explained by the doctor. I am prepared to assume that his first explanation has a typing error. He said in his report of 5 November 2008 that it was “not usual [sic] for a minor soft tissue injury to a cervical spine to progress to a frank disc prolapse as noted on the scans”. For his explanation to make sense, he must have meant “unusual”. Even making that assumption, the explanation does not assist Ms Brasz because it still assumes that she sustained an injury (albeit a minor soft tissue injury) to her cervical spine on 26 March 2007. The evidence is overwhelmingly against that assumption and I do not accept it.
Dr Giblin did not explain the second mechanism, namely, that a pre-existing asymptomatic disc bulge can be rendered symptomatic by virtue of material damage in a sympathetic fashion in relation to an adjacent joint injury such as the shoulder. As a result, such an opinion is of limited probative value because it is a bare conclusion unsupported by any analysis or reasoning (Makita). The omission of such an explanation can sometimes be overcome by the use of “commonsense” in the evaluation of evidence and the “sequence of events” (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’) at [90]). However, the connection between a shoulder strain on 26 March 2007 and the subsequent development of neck symptoms several weeks later is not within “the realm of common knowledge and experience” (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her “commonsense” to conclude that the neck symptoms had resulted from the shoulder strain. The objective evidence is strongly against drawing such a connection. The incident was not formally reported for two weeks. When it was reported, the report was of a right shoulder strain when “bumped” by a client. The first medical history (recorded by Dr Ranasinghe) did not even have that history, but had a history of “overtime causing the onset of pain”. The history recorded by Dr Tcherkas on 18 April 2007 was of a shoulder injury on 26 March 2007. Dr Asar took a similar history on the same day.
Whilst it is always necessary to assess doctors’ notes with care (Nominal Defendant v Clancy [2007] NSWCA 349), the notes in the present case come from several different sources, are typed, and are consistent with Ms Brasz having not complained of neck pain in the first four weeks after 26 March 2007. There are no reports from any of the general practitioners to clarify or elaborate on their notes. The notes are also consistent with the notification of injury form completed by Mr McIver on 18 April 2007. In these circumstances they are entitled to significant weight. They not only provide no assistance to enable me to draw a “commonsense” conclusion that Ms Brasz’s neck symptoms have resulted from the incident on 26 March 2007, they seriously undermine Ms Brasz’s claim because they directly contradict her assertion that she experienced neck pain immediately after the incident. There is no other evidence that would enable me to use commonsense to conclude that Ms Brasz’s neck symptoms have resulted from the incident on 26 March 2007.
In his report of 20 November 2008, Dr Giblin offered a further opinion supporting a connection between the injury on 26 March 2007 and the neck symptoms. This opinion is also unhelpful and unpersuasive. It is “based upon” three things:
(a)Ms Brasz’s “history in relation to her work environment”;
(b)the “date of injury”, and
(c)the “presentation of her symptoms together with the underlying radiological findings to her neck”.
The reference to Ms Brasz’s “work environment” is of limited relevance. She does not allege an injury as a result of the nature and conditions of her employment, but as a result of a specific incident when a person collided with her right shoulder. That incident was, on any view of the evidence, a minor one. There was no fall. There is no persuasive evidence of jarring or trauma to the neck.
Dr Giblin’s reference to the “date of injury” does not assist. The date of injury is 26 March 2007, four weeks before the first complaint of neck symptoms.
The “presentation” of Ms Brasz’s symptoms does not assist. Drs Smith and Kam both described her symptoms as “atypical”. Though that is certainly not determinative, it raises an issue that has not been adequately dealt with in the evidence. Ms Brasz’s presentation does not assist in drawing the conclusion that her neck symptoms have resulted from the incident on 26 March 2007.
Dr Giblin’s linking of the presentation of Ms Brasz’s symptoms with the underlying radiological findings in her neck does not assist in providing a link between the events on 26 March 2007 and the subsequent cervical symptoms. Ms Brasz may well have symptoms in her cervical spine and her radiological findings offer some explanation for those symptoms. However, the critical question is whether the neck symptoms have resulted from the March incident at work. On this issue, Dr Giblin concludes that it would be reasonable to “assume a causal relationship” (emphasis added) between the incident and the cervical symptoms, which are in keeping with the radiological findings at C5/6. That provides little assistance on the question the Commission has to determine, namely, whether, on the balance of probabilities, Ms Brasz’s cervical symptoms have resulted from the work incident on 26 March 2007. This calls for “a commonsense evaluation of the causal chain” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). Applying that test, I am not satisfied that Ms Brasz has established that her neck symptoms have resulted from the incident at work on 26 March 2007.
Dr Giblin then re-stated his conclusion that Ms Brasz’s “neck injury is directly related to the work accident”. This conclusion is also unpersuasive. Assuming that Dr Giblin meant to say “neck symptoms” or “neck condition”, as opposed to “neck injury”, I do not accept that conclusion because it is unexplained.
Having regard to the minor nature of the incident, the delay in reporting it, the delay in taking time off work, the initial complaints (to several doctors) of shoulder symptoms only, the presentation of atypical symptoms, and the unpersuasive evidence from Dr Giblin attempting to explain the four week delay between the incident and the commencement of the neck symptoms, I do not believe Ms Brasz has discharged the onus of proof. She has not established that she injured her neck on 26 March 2007, or that her later neck symptoms resulted from the incident at work on that day.
In respect of the alleged injury to Ms Brasz’s back and right leg, the evidence is even less persuasive. Ms Brasz’s evidence is that she awoke on 27 March 2007 with strong pain in her neck and shoulder that radiated into her back and right arm and hand (Ms Brasz’s statement 28 February 2008, paragraph 17). Given the clinical records from her several general practitioners, I do not accept that Ms Brasz injured her back on 26 March 2007 or experienced back pain on 27 March 2007. Whilst Dr Tcherkas referred to “back complaints” and “pain relief and mobility improvement of her low back” in the Management Plan Authority, he took no history of a back injury at work on 26 March 2007 and none of the medical certificates refer to a back or leg injury. There have been no investigations of the alleged back and leg symptoms.
The only doctor to support the back claim is Dr Matalani, who did not indicate when the back symptoms were alleged to have commenced. Drs Giblin, Assem, Kam and Rail took no history of any back or leg symptoms. I am comfortably satisfied that Ms Brasz did not injure her back or right leg on 26 March 2007. I do not accept that any complaints of back or right leg pain have resulted from the incident on 26 March 2007.
In light of the above findings, it is not necessary for me to deal with Dr Assem’s evidence in any detail. I note, however, that he was given an incorrect history that the shoulder and neck symptoms progressively increased in severity resulting in Ms Brasz seeking treatment on 10 April 2007. As discussed above, Dr Ranasinghe’s notes establish that that was not correct. In view of the factual findings I have made about the commencement of Ms Brasz’s neck symptoms, it follows that I do not accept that she sustained an aggravation injury to the degenerative changes in her neck, as suggested by Dr Assem. Other issues dealt with by Dr Assem are yet to be determined.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view, for the reasons given in this decision, that Ms Brasz has not discharged the onus of proof in respect of her claim that she injured her neck, back and right leg on 26 March 2007. Further, save for the referred pain from her right shoulder to her neck, I do not accept that the symptoms in her neck, back or right leg have resulted from the incident on 26 March 2007.
Apart from the challenges to the Arbitrator’s findings, or lack of findings in respect of the neck, back and right leg, neither party has challenged the terms of the Arbitrator’s consequential orders and those orders are confirmed.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 20 February 2009 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
3 June 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
Key Legal Topics
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Tort Law
Legal Concepts
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Causation
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