Carrasco v Brolton Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carrasco v Brolton Group Pty Ltd [2021] NSWPIC 108
APPLICANT:	Luis Carrasco
RESPONDENT:	Brolton Group Pty Ltd
MEMBER:	Ms Elizabeth Beilby
DATE OF DECISION:	6 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Section 4 injury, lack of early contemporaneous complaint; consideration of histories given to Medical Practitioners not adopted in statement form; Greenhills Childcare Centre Inc v Meireles and J B Metropolitan Distributors Pty Ltd v Kitanoski considered; Held- applicant sustained an injury within the meaning of section 4A of the 1987 Act; the proposed surgery is reasonable.
DETERMINATIONS MADE:	1. The applicant sustained an injury within the meaning of section 4A of the Compensation Act 1987 to the cervical spine. 2. The proposed surgery is reasonably necessary.

STATEMENT OF REASONS

BACKGROUND

Mr Lewis Carrasco (the applicant) was employed by the Brolton Group Pty Ltd (the respondent) as a boilermaker.
On 4 April 2018 the applicant sustained an injury in the course of his duties. The mechanism of injury is described by the applicant in his statement dated 7 August 2020.[1] In that statement the applicant describes how he attempted to undo a jig which had been tightened by another person with a shifter and hammer. The applicant hit the jig with his hand to try and assist it to move and sustained injury whilst doing so.
[1] Page 40 of the Application to Resolve a Dispute (Application).
The applicant sustained an accepted injury to his thumb and also claims to have sustained a cervical spine injury in the subject incident.
It is the applicant’s evidence[2] that he has experienced loss of range and weakness in the left hand and arm together with pain and discomfort extending to the base of the neck since the date of injury. Concurrently the applicant experienced problems with his left wrist and hand (which is accepted).
[2] Page 1 of the Application.
There is no evidence the applicant had any significant cervical symptomatology before the event pleaded. In particular there is no evidence of a cervical spine or brachial plexus injury.
After the incident the applicant was initially taken to Shellharbour Hospital for treatment and then transferred to the Sydney Hand Hospital. He then underwent surgery on 10 April 2018 in relation to a ruptured extensor pollicis longus tendon. The surgery involved a tendon transfer using the extensor indicis.
Post operatively the applicant was splintered for a period and underwent extensive physiotherapy together with pain management medication.
The applicant ceased work for four weeks following his injury and then returned to restricted duties without using his left hand. His employment ceased in October 2018 and he has not worked since that time.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant sustain an injury to the cervical spine on 4 April 2018 as pleaded?

Matters no longer in dispute

The application in respect of weekly benefits was not pursued by the applicant at the arbitration and was discontinued.
The respondent no longer pressed argument in relation to whether surgery as proposed by Dr Mobbs was appropriate. This was not surprising as the respondent’s expert, Dr Machart, held the view that the applicant would benefit from surgery, though he did not think that the need for surgery arose from the pleaded incident.

PROCEDURE BEFORE THE 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application;
(b)    Reply to the Application (the Reply);
(c)    Application to Admit Late Documents from the applicant , and
(d)    DVD material.

APPLICANTS CASE

It was submitted by the applicant that his injury to the cervical spine has been diagnosed following undergoing treating attendance and investigation of his symptoms.

15. The applicant claims to have suffered an injury to his cervical spine within the meaning of section 4A of the Compensation Act 1987 to the cervical spine which provides for a definition of injury to be ‘arising out of or in the course of employment.

MEDICAL EVIDENCE

Of central significance in this dispute is an analysis of whether the applicant did indeed suffer an injury to cervical spine in the pleaded event. I will now embark on an analysis of the treating expert material together with the retained expert material.

Dr Pillemer

Dr Pillemer has prepared reports on behalf of the applicant.
Dr Pillemer’s first report is dated 13 March 2019[3] . Dr Pillemer took a rather brief history of the injurious event which was described as the applicant striking his left thumb firmly against a jig. There is no history provided by the applicant of any ongoing problems other than the left wrist and hand, that is there is no reference to any cervical symptomatology.
[3] Page 14 of the Application.
Dr Pillemer’s second report is dated 18 April 2019[4]. This was a short report addressing the applicant’s entitlement to whole person impairment. It should be observed that once again Dr Pillemer does not make any comment in relation to a claim and/or entitlement in respect of the cervical spine.
[4] Page 18 of the Application.
Dr Pillemer has prepared a third report dated 14 January 2020[5]. It is at this time that Dr Pillemer takes a history of pain involving the whole of the left arm and shoulder area extending into the base of the neck on the left-hand side. The applicant explained to Dr Pillemer that he experiences pins and needles in the fingers of both hands and discomfort in the whole of the arm.
[5] Page 30 of the Application.
Dr Pillemer, on specific questioning, was told by the applicant that these symptoms have been present ever since the original injury. Dr Pillemer asked the applicant why he had not discussed this symptomatology with his previous specialists and the applicant explained that he had felt that all his symptoms were arising from the wrist and hand.
Dr Pillemer had previously suggested that the applicant see a hand specialist (which he did) however Dr Tawfik, hand specialist was unable to explain the ongoing pain or less of flexion and weakness in the left hand.
Dr Pillemer also takes a significant history[6] that in addition to striking his left wrist and hand firmly against the jig the applicant’s arm was immediately then thrown backwards and out to the side. This description of the injurious event was to Dr Pillemer’s mind significant.
[6] Page 21 of the Application.
Dr Pillemer observed that with regard to the mechanism of injury he noted that the applicant was struck firmly in the region of his left thumb against a jig with the force being sufficient to rupture a tendon. Dr Pillemer had no doubt that he would have withdrawn his arm rapidly at the time, which in his opinion, would certainly have caused more proximal nerve injury damage.
Dr Pillemer clearly takes a history that there was an extended mechanism that took place and that the pain that he experienced at that time affected the whole upper limb.
On examination Dr Pillemer observed that there was a restriction of cervical movement however satisfactory range of shoulder movements bilaterally. There was also distinct sensory loss with hyperaesthesia to pin-prick of the whole of the left upper limb compared to the right side with distinct cut off points over both anterior and posterior axle lines. It was Dr Pillemer’s opinion that the sensory loss was in a distribution of the brachial plexus. This was observed to be distinct and present with repeated testing.
Dr Pillemer expressed concern that there had been a traction injury of the brachial plexus which occurred at the time of the injury. Dr Pillemer opined that the mechanism of injury certainly would suggest a traction injury of the brachial plexus. Dr Pillemer recommended that the applicant needed to see a neurologist to consider the left brachial plexus.
The applicant then returned to see Dr Pillemer after consulting with a neurologist and a neurosurgeon and a further report has been prepared in respect of that consultation dated 11 August 2020.[7]
[7] Page 24 of the Application.
Dr Pillemer understood that after these neurological consultations it had been decided that the applicant’s symptomatology was probably due to a foraminal stenosis at C5/6 level and surgery had been recommended.
Dr Pillemer confirms his opinion that the applicant’s ongoing symptoms were due to the injury on 4 April 2018. Further he believes that the mechanism of injury which involves significant force to rupture a tendon, would no doubt have caused the applicant to withdraw his arm rapidly which could certainly have caused proximal nerve injury/damage .
Dr Pillemer notes the treating neurological specialist opinion that the symptoms were due to left C6 cervical radiculopathy and agrees that the applicant would have an underlying neurological course with ongoing symptoms but did not feel that he could explain the extent of the sensory loss nor the significant tenderness to palpitation on the basis of a C6 nerve root lesion.
Dr Pillemer appears to accept the opinion of the neurologist and suggests that the brachial plexus lesion still needed to be looked at, however in circumstances where the neurologist was satisfied that there was left C6 radiculopathy and the symptoms resulted from that then he was satisfied with that diagnosis.
Dr Pillemer accepts that the proposed surgery would be reasonably necessary.

Dr Bashford

Dr Bashford is a pain specialist who examined the applicant and has prepared a report.[8] On examination, Dr Bashford observed that the applicant’s neck and shoulder movements were normal and pain-free on 18 July 2019.
[8] Page 41 of the Application.
Dr Bashford has prepared a second report dated 22 April 2020. Dr Bashford took a history that when the applicant woke from his hand surgery he noted the onset of left hand pain with patchy sensory loss around the surgical scar, but right from the start he also noted a significant lancinating component arising from the neck on the same side.

General practitioner

The general practitioner is Dr Thangavel whose treating notes are annexed to the Application to Admit Late Documents.
The respondent referred to an examination on 4 December 2019[9] which records the applicant’s then condition. The entry indicates that the applicant’s left hand was still the same but the applicant was very keen to get back to work. There was no indication in those initial treating notes that there is any pain other than what the applicant experiences in the hand and wrist.
[9] Page 11, late documents.
The first entry in the treating notes in respect of pain in the left side of the neck is on 16 April 2020.[10] The entry indicates that the applicant was experiencing increasing and persistent pain in the left side of the neck radiating into the left arm. The general practitioner understood the applicant was consulting with Dr Bashford the next week and also needed to see neurosurgeon in relation to a C5/6 compression.
[10] Page 7, late documents.
The treating notes following the consultation on 16 April 2020 report ongoing neck pain. Indeed on 29 June 2020 it is reported that the left side neck pain was worsening. The treating notes also outline the care provided by Dr Mobbs to the applicant.

Dr Borire

Dr Borire, treating neurologist, has prepared a report dated 5 March 2020.[11] Dr Borire takes a history that immediately after the accident the applicant recalled having intense pain extending from the periscapular region down to his fingertips. I observe that this is an area that is fairly close to the neck region. This intense pain was accompanied by numbness and paraesthesia. None of the sensory symptoms had a clear dermatomal or radicular distribution. Over the following months, the applicant’s sensory symptoms seemed to have persisted even though his tendon transfer appeared to be functioning quite well.
[11] Page 87, late documents .
On further questioning regarding the mechanism of injury the applicant reported that he was trying to rotate one of the pieces of equipment at work when he suddenly felt a jolt through his arm which threw his arm and shoulder girdle backwards. The applicant also explained that he did not put too much weight on his sensory symptoms after the injury because the focus was on his tendon rupture and his chronic pain.
On examination Dr Borire observed global hypoesthesia affecting the whole of the left upper limb without a clear dermatomal pattern. All sensory modalities including light touch, temperature, pinprick and vibration sense were affected. The right upper limb examination was described to be unremarkable.
Dr Borire understood that nerve conduction studies were within normal limits, however needle EMG revealed chronic neurogenic changes in the left biceps, triceps and the flexor carpi radialis which localises to that C5-C7 myotomes.
Dr Borire opined that the clinical and electrophysiological findings were suggestive of a chronic radicular process. He thought that a brachial plexus or peripheral nerve lesion was unlikely in view of the preserved upper limb sensory responses. Dr Borire was not certain whether the suspected radicular lesion was related to the work-related injury. He recommended that the applicant undergo an MRI scan of the cervical spine and also the brachial plexus and to return to further consultation after this had occurred.
Dr Borire has prepared a second report dated 2 April 2020.[12] The applicant had by then undergone an MRI scan which revealed the presence of left C5/6 foraminal stenosis with impingement on the exiting C6 nerve root. Dr Borire commented that this finding was consistent with the electrophysiological findings of chronic neurogenic change in the left C5/6 myotome. Dr Borire opined that the applicant’s clinical presentation was consistent with a left C6 cervical radiculopathy.

Dr Mobbs

[12] Page 43 of the Application.

Dr Mobbs has prepared a report dated 15 July 2020[13] where he recommends surgery. Dr Mobbs essentially suggests that the surgery will assist with the cervical spine problem but also notes that the applicant may also have a separate brachial plexus injury
[13] Page 26 of the Application.
Dr Mobbs has prepared a further report dated 6 November 2020.[14] Dr Mobbs had the video that Dr Pillemer took of the applicant’s examination. Dr Mobbs said that he thought that the applicant still had dual pathology.
[14] Page 29 of the Application.
Dr Mobbs explained that given the diffuse nature of the symptoms including neck pain, arm pain, paraesthesia and dysesthesia, that covers more than just the C6 nerve root territory, he was of the opinion that there was a combination of brachial plexus traction injury in addition to the C6 motor sensory radiculopathy. That is why Dr Mobbs was of the opinion that there was no one intervention that would cure the patient of all his symptoms. He did however remain of the view that ACDF would assist in the recovery of at least some of the patient’s symptoms.
Dr Mobbs has prepared a third report dated 2 September 2020[15]. Dr Mobbs was treating the applicant again and stated that he was fairly convinced that the applicant had dual pathology, that is, a cervical spine injury with severe foraminal stenosis at C5/6 on the left which was a major contributor to the forearm and hand symptoms radiating to the thumb which is a classic C6 territory and secondly a brachial plexus injury and it was likely that there had been some degree of traction injury to the plexus.
[15] Page 39, late documents.
In respect of the surgery, Dr Mobbs thought that there was no ‘magic cure’ however the ACDF procedure will assist the applicant but would not get rid of every symptom he experienced. Dr Mobbs observed that nerve traction injuries can be very annoying and they can leave ongoing paraesthesia or nerve-related symptoms however the ACDF would significantly reduce the pain which the applicant had been experiencing. So, essentially what Dr Mobbs is recommending is that the surgery will fix one part of his pathology only.

Dr Machart

Dr Machart has prepared a report on behalf of the respondent dated 16 November 2020. The report takes a history that the applicant suffered an injury when undoing a vice using his left hand that was strenuous.
On examination, Dr Machart[16] found significant symptoms of the cervical spine which he considered was suggestive of C5/6 spondylosis. This was a chronic condition that to Dr Machart’s mind was not caused by the injury. Dr Machart expressed concern that the history and the onset of pain was not consistent with an injury being sustained in a frank injury as pleaded. That is, that the clinical evidence does not illustrate contemporaneous evidence of injury to anything other than the thumb tendon.
[16] Page 40 of the Reply.
In respect of the proposed surgery, Dr Machart stated[17] that the proposed surgery by Dr Mobbs was necessary, but not as a result of the workplace injury. That is, that the applicant should have the surgery but it does not result from the work injury on 4 April 2018.
[17] Page 43 of the Reply.

SUBMISSIONS AND CONSIDERATION

The applicant submitted that whilst there are different brief histories in various medical reports to different doctors, there is not an inconsistent history. It is just small parts of the history that when put together shows the complete history and that is a significant injury with extensive tendon damage at the time which involved some force. That is, there was a mechanism injury with a firm hit and the applicant pulling away and contorting himself.
I raised at the Arbitration that I had some concern about the applicant not adopting the history that Dr Pillemer has as to the mechanism of injury in statement form. The respondent submitted that if the applicant wanted to adopt the history that Dr Pillemer had in his report he should have done so by way of statement. The mechanism of injury was not put in the statement despite the fact that he had prepared two statements after the report of Dr Pillemer.
Mr Parker of counsel appeared for the applicant and alleviated that concern somewhat by referring to various case law that evidence of history can be evidence of a fact. I was referred to the decisions of Greenhills Childcare Centre Inc v Meireles[18] and also J B Metropolitan Distributors Pty Ltd v Kitanoski [19]where Deputy President Roche commented that statements and medical histories are evidence of the fact. Similar sentiments were also made in Southern Meats Pty Ltd v Tucker[20] and Black v Inghams Enterprises Pty Ltd[21].
[18] [2020] NSWCCPD 37.
[19] [2016] NSWCCPD 17.
[20] [2021] NSWCCPD 2.
[21] [2020] NSWCCPD 69.
It was observed by the respondent that the first recorded complaint of any problems in the arms and the neck are not until the report of Dr Pillemer of 14 January 2020. This is despite the fact that there is evidence that the applicant’s neck was examined and found to be normal by Dr Bashford.[22] It was therefore submitted that the applicant had not discharged the burden of proof in respect of the causation of the injury.
[22] Page 109 of the Application.
I agree that the consultation and examination in July 2019 did not disclose any cervical symptomatology. Dr Bashford however on his second consultation does take a history of symptomatology. There is no doubt that it would make the applicant’s case stronger if there had been a record of complaint or findings on examination in 2019.

I am mindful that my role as Member is to find injury, not the extent thereof. Whilst this examination does cause some concern, it is only one of many factors that I must consider when determining injury.
I also understand that there is no evidence or documented complaint of neck pain in the clinical records at an early stage. There can be no challenge to that observation, however caution must be given when dealing with treating notes.
In any event, in this case it appears that the applicant’s focus does appear to be on his hand and investigations appear to be focused on that body part. The applicant quite clearly in his statement at paragraph 11 said:
“I’ve been experiencing this pain and discomfort. Symptoms have been occurring since the date of injury. I’ve always wondered why it was not getting better and sought regular medical advice to try and diagnose the problem. I’ve seen every doctor I could to try and get to the bottom of why it’s not getting better.”
There is no reason for me not to accept the applicant as a witness of truth. There has been no serious attack to his credit and I accept what he says in his statement is to be his honest evidence. There is also no reason for me not to accept his description of injury as provided to Dr Pillemer, though it must be said this case would be more straightforward if the applicant had directly adopted his description of the mechanism of injury by way of statement.
I therefore accept the mechanism of injury as described to Dr Pillemer as fact.
The applicant submitted that once that mechanism injury has been established there is no actual evidence to contradict it. There is no doctor that says the mechanism was not possible or that with that type of mechanism that the type of injury claimed could not have occurred. This is a true statement of the evidence
To my mind what is significant is the applicant said he has always had pain and discomfort down the left arm extending to the neck. True it is that that complaint isn’t recorded in the earlier treating notes or to earlier treating specialists, it does not negate the applicant’s evidence on this issue in circumstances where I have no reason not to accept the applicant as witness of truth.
In respect of the report of Dr Bashford, on the face of it, it appears that the applicant says that he noticed the onset of a significant lancinating pain from the neck on the same side following his hand surgery. Whilst it may be that this shows a history that the pain in the neck arose from the surgery, that in itself does not mean that the applicant did not have pain before. The applicant is talking about a significant lancinating component as opposed to general neck pain.
It also must be borne in mind that the applicant does not have a medical background. He is a boilermaker by trade. It appears to me that in his evidence[23] the applicant is trying to understand what is going on and why his symptoms are not improving. The diagnosis is obviously complex. It is common in the Commission that after some treatment the proper diagnosis is discovered and it is not until certain “doors are shut” that the injury itself can be properly diagnosed.
[23] Paragraphs 22-22.
So far as there are two differential diagnoses, that is a brachial plexus injury and also a cervical spine injury with radiculopathy I am not required to rule on the brachial plexus injury in circumstances where there is clear evidence by way of a treating neurologist of the cervical spine injury. To this extent, I find the evidence of Dr Mobbs, who has seen the applicant on multiple occasions, to be convincing. I therefore have no difficulty in finding that there is a cervical condition that the applicant experiences.
The issue is so far as where the cervical condition comes from, is explained by Dr Pillemer clearly in his reports. The respondent submitted that the only doctor who says anything about causation of the cervical condition and surgery is Dr Pillemer. Dr Mobbs, Dr Borire and Dr Bashford do not deal with causation to say that the condition relates to a specific incident in April 2018.
It is unfortunate that the other experts retained the case have not directly grappled with the question of the mechanism of injury. This once again would have assisted me and my determination, however is not fatal to the applicant’s case.
The applicant submitted that the applicant has had multiple different treatments all unsuccessful. It was submitted that it was not conceivable that the applicant somehow had a significant lesion in the neck capable of causing radiculopathy and was able to manage his work as a boilermaker before this incident. It is also inconceivable that the applicant developed this significant lesion in the neck and the brachial plexus after the event without there being some reason as to why. I agree with this submission.
It was submitted that all the evidence is consistent with a finding that the applicant was injured as pleaded at a particular time. The applicant had focused on the particular injury that required surgery with the doctors also maintaining that focus. However, the applicant continued having symptoms and over time both he and the doctors eventually realised there was a cervical lesion that needed to be corrected.
The applicant submits that a history taken by Dr Machart is of little detail. Indeed, the only history taken by Dr Machart[24] was “he suffered an injury when undoing a vice with the left hand. This was strenuous.” The applicant submits that this is a significantly benign history as to the injury. It was submitted that this history should be considered in light of the thorough histories obtained by Dr Pillemer and Dr Borire.
[24] Page 39 of the Reply.
The applicant also submitted that Dr Machart does not provide any reason why he does not accept the applicant’s onset of pain as stated by him. That is, there is no reason Dr Machart could not take the applicant at his word. Further, it was also pointed out that Dr Machart has diagnosed the applicant as having chronic C5/6 spondylosis, which is a diagnosis neither doctor has found. This also does not sit comfortably with the applicant being completely asymptomatic before the pleaded event.
I agree with this submission. The applicant’s history of complaint given orally at examination does not need to fit with treating notes taken by other treating specialists in circumstances where there is no significant credit issue.
It was submitted that Dr Pillemer in himself was not accepting a C5/6 nerve root lesion as being the cause of the applicant’s symptoms. In that examination of 14 January 2020 Dr Pillemer does indeed find restrictions of cervical movement with extension with lateral rotation on the left being far more restricted than the right. Dr Pillemer thought that the sensory loss in the whole of the left upper limb was in a very typical distribution of the brachial plexus.
I do not agree that this is a succinct description of Dr Pillemer’s assessment of the applicant’s condition. Dr Pillemer in his later reports clearly accepts that there is a dual condition going on, and defers to the opinion of the treating neurologist in respect of the cervical injury.
The respondent submits that no doctor has properly connected a cervical injury, that is a C5/6 injury with radiculopathy to the injury on that particular day and therefore the applicant must fail. I disagree, Dr Pillemer has attended to this connection.
There is no reason for me not to accept the applicant that he had pain earlier on than is indicated in the treating notes. There is no reason for me not to accept the applicant as a witness of truth. There are no underlying reasons for me to accept that the applicant has lied in respect of the onset of pain. I therefore accept his onset of pain as earlier than what is documented in the clinical notes. I am also comforted by the fact that the applicant did not show any symptomatology before the frank incident and there was no evidence of a frank incident after. Whilst some may think this is a finding based on the onset of injuries occurring at the same time as an injurious event, my findings are not that. Dr Pillemer clearly explains the mechanism of injury, the applicant says there is an onset of pain since that time. I therefore accept the applicant sustained an injury as pleaded.
It needs to be said that the applicant does not need to present a perfect case. Findings in the Personal Injury Commission are based on a balance of probabilities. On the balance of probabilities I find that the applicant sustained a neck injury as pleaded. Whilst there are certain weaknesses in the applicant’s case, including but not limited to the lack of contemporaneous complaint, the differential diagnosis, the failure to adopt the mechanism of injury in statement form, I find on balance the applicant has satisfied me that he sustained an injury to the cervical spine in the pleaded event.

[2021] NSWPIC 108

6 May 2021