Cashion v Energy and Water Ombudsman

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cashion v Energy and Water Ombudsman [2023] NSWPIC 16
APPLICANT:	Craig Cashion
RESPONDENT:	Energy and Water Ombudsman
Member:	Michael Wright
DATE OF DECISION:	16 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Undisputed left shoulder injury as result of a fall on 24 October 2014; dispute as whether applicant sustained injury to the head in the same fall and as to causation of following Meniere’s Disease; consideration of lack of contemporaneous medical records of head injury; Mason v Demassi and Davis v Council of the City of Wagga Wagga considered and applied; consideration of causation and common sense evaluation of the chain of causation; Kooragang Cement Ltd v Bates applied; Held – applicant sustained head injury pursuant to section 4(a) of the Workers Compensation Act 1987; injury simpliciter, as a result of fall on 24 October 2014, resulting in Meniere’s Disease; matter referred to a Medical Assessor (MA) without determining claim for weekly compensation pending outcome of assessment of permanent impairment by the MA.
determinations made:	1. Pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) the applicant sustained injury to his head on 24 October 2014, resulting in Meniere’s Disease. Pursuant to s 9A of the 1987 Act, the applicant’s employment with the respondent on 24 October 2014 was a substantial contributing factor to the injury. 2. Matter remitted to the President for referral to a Medical Assessor (MA) for the assessment of the degree of permanent impairment in respect of ear, nose, throat and related structures, as a result of injury to the head on 24 October 2014, resulting in Meniere’s Disease. Brief to the MA to include the Application to Resolve a Dispute and attached documents, Reply and attached documents, and Applications to Admit Late Documents, and attached documents, dated 12 October 2022, 23 November 2022 and 29 November 2022.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Craig Cashion (the applicant) claimed weekly benefits and lump sum compensation as a result of injury on 24 October 2014 in the course of his employment with Energy and Water Ombudsman (the respondent).
There was no dispute that the applicant sustained injury to his left shoulder on
24 October 2014.
The respondent disputed that the applicant sustained injury to his head on 24 October 2014 resulting in Meniere’s Disease.
In dispute notices dated 1 December 2020, 6 April 2021, 1 June 2021 and 9 June 2022 the respondent disputed that the applicant sustained injury, disease or aggravation of disease, or consequential injury, in respect of injury to the applicant’s head on 24 October 2014 resulting in Meniere’s Disease, as well as in respect of s 9A, whether employment was a substantial contributing factor to the subject injury, and s 4(b), whether the applicant’s employment with the respondent was the main contributing factor to the disease or the aggravation of the disease. The respondent also disputed capacity and entitlement to lump sum compensation and weekly compensation.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 1 December 2022, the applicant was represented by Mr Robison of counsel, instructed by Mr Concannon, solicitor, and the respondent by Mr Stockley of counsel, instructed by Mr Michael, solicitor.
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.
Having regard to the decision in Jaffarie v Quality Castings Pty Ltd[1], I decided that it was necessary that, if the applicant were to be successful in respect of the liability dispute, then the matter would be referred to for the assessment of the degree of permanent impairment, prior to the determination as to weekly compensation.

EVIDENCE

[1] [2014] NSWWCCPD 79.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Applications to Admit Late Documents, dated 12 October 2022,
23 November 2022 and 29 November 2022.

Oral evidence

There was no application to cross-examine the applicant nor to give oral evidence.

Applicant’s statements

The applicant provided statements dated 1 September 2021 and 12 October 2022.
In his statement dated 1 September 2021, the applicant stated that on 24 October 2014 he sustained injury in the course of a sporting carnival that was run by the respondent as a work event at the Domain in Sydney. He stated that on that day he was playing tunnel ball and, whilst carrying the ball, he was sprinting. He said that the surface of the oval was not even and he tripped over onto hardpacked earth or dirt underneath him. He said that he fell onto the left side of his body, including his shoulder and left arm. He stated that as his shoulder hit the ground and with momentum his head also continued to strike the ground on the left side of his head just above his ear. He said that he was unable to use his arms to break his fall as he was carrying the ball when he fell.
The applicant stated that as best he could recall he “blacked out” for a few seconds after the fall. He said that he experienced stars in his eyes shortly afterwards. He stated that he could hear other people’s voices around him and he was told that he looked “white as a ghost”. The applicant said that he “felt very off-balance and unsteady”. He stated that he was “imbalanced and wobbly on [his] feet” and he had to sit down for about five minutes before he could get up again.
The applicant said that after the accident he walked slowly to the Sydney Hospital, which was about 100 m away, with the help of one of his work colleagues, Amalle. He stated that at the hospital he was diagnosed with a fracture of the left humerus and he was discharged with painkillers. The applicant said that he was seen at the hospital about 30 minutes after the fall and he was no longer experiencing symptoms of grogginess, disorientation or wobbliness. He stated that by that time he was in extreme pain in his left arm and shoulder and, as a result, the medical staff focused on this part of his body and he was not asked about his head nor was he checked for concussion and the “severe bruising on [his] upper chest or right hip” was not examined.
The applicant stated that after a stressful and painful healing period, he started to develop symptoms of ringing in his left ear in February 2015 and his ear also felt blocked. He said that he consulted an ear, nose and throat specialist in March 2015. The applicant stated that his “tinnitus was manageable in the early days” but he subsequently developed vertigo and nausea and “a very reduced sense of balance”. He stated that he was initially treated with prescription medication and a low salt diet and a diuretic.
He said that over time the tinnitus became more troublesome and more frequent and he started to notice hearing loss. The applicant stated that in 2016 he was treated with the course of steroids on two occasions for about one week on each occasion. He said this was effective in reducing his symptoms over the short term but they continued to increase in severity over time and by early 2018 he started to develop light-headedness and imbalance. The applicant stated that his symptoms became a lot worse in early 2019 and in early
April 2019 he had his first significant attack of severe rotary vertigo, which caused uncontrollable vomiting he said that he was admitted by ambulance to the St George Hospital on two occasions and he consulted Dr Chang, ear, nose and throat specialist. The applicant underwent substantial treatment by Dr Chang, culminating in “obliterative” surgery on 10 October 2019 in order to treat the Meniere’s Disease, with loss of hearing in the left ear, and also a cochlear implant at the same time for the hearing loss.
The applicant in his statement dated 12 October 2022 confirmed the above evidence, and also provided further details as to incapacity and time off work. As noted above, these are not matters to be considered in the present decision.

Amalle Halabi

Ms Amalle Halabi provided a statement dated 17 December 2020.
Ms Halabi stated that she recalled the applicant’s work injury in 2014. She stated that she was in the applicant’s team of about eight. She said that the accident happened when the team was participating in an activity similar to tunnel ball in which one of the group would throw the ball underneath the legs of the other team members and then the person at the backward run to the front.
Ms Halabi said that she did not see the applicant fall and she was towards the back of the eight persons who had lined up to participate in the tunnel ball. She said that she understood that the applicant ran from the front of the line and fell onto the ground. She stated that she would describe the surface as “half packed dirt/sand and half grass”. She said that although she did not see the applicant fall, she remembered hearing him scream and she noticed him tried to stand up and the group had stopped playing. She stated that she checked on him to see how he was going and she remembered that when she looked at him the applicant was “pale in the face and he seemed disoriented and in obvious shock”. She stated that the applicant could not move his arm or shoulder.
Ms Halabi stated that the applicant had to be assisted to his feet and he was able to walk with her to the Sydney Hospital which was only about 200 m to 300 m away. She said that she recalled that on the way the applicant seemed unsteady on his feet and he told her that he was in pain. She stated that at the Sydney Hospital they were taken into the examination room after only a few minutes in the waiting room and at that time the applicant was “still in obvious pain and he was pale in his face and in obvious shock”. She stated that “I remember that he explained to the doctor who treated him at the hospital and to the nurse that he fell on his left side and that it was a big fall”.

Sydney Hospital

The clinical records of the Sydney Hospital contained notes of a triage presentation on
24 October 2014 and a clinical note of the same date.
The triage note of 24 October 2014 recorded that:
“S/P pt said he fell ove [sic] landing on his left shoulder. Pain to tip of humerus which radiates to left forearm. Pt can extend but not flex left arm back into position. Pain scale 7/10 pt looks in ++discomfort. Nil meds/NKA given Panadeine forte x 2…”
The entry recorded for “Triage Visit Reason” was “pain, shoulder”.
The clinical note of 24 October 2014 recorded under “History of Present Illness” (emphasis in original):
“The patient present with:
Chief Complaint:
work sport
running on grass, trip and fall on left shoulder
pain left shoulder
no LOC
no other injury”
The same clinical note recorded that “x-ray shows fracture of left neck of humerous” with a diagnosis of “closed fracture of left neck of humerous”.
An X-ray report of 24 October 2014 recorded an X-ray of the left humerus of the same date and noted “there is a multi-fragmented fracture of the humeral neck” and “no other significant changes are seen”.

St Vincent’s Hospital

The St Vincent’s Hospital provided clinical notes, including an Emergency Department discharge letter dated 18 April 2019. In that letter it was noted that the applicant was referred to the Emergency Department by Dr Becvarovski “(ENT)” with a two week history of worsening left Meniere’s Disease, with symptoms noted as tinnitus, episodic vertigo, hearing loss left ear, no deficit right ear, and background dizziness. A prior history was noted that the applicant was “first diagnosed with Meniere’s in L ear 2015. Attacks becoming more frequent… Chronic fatigue”. “Impression” was noted as “worsening meniere’s disease… Currently stable”.
A clinical note of 18 April 2019, although somewhat difficult to read, indicated a history of “Meniere’s since 2016… More frequent… 2 episodes 2017… 3 episodes 2018… Recent attacks Jan 2019… & [illegible] 2019”.

Dr Chang

Dr Chang, treating ear, nose and throat surgeon, provided a letter dated 20 September 2020 and also a number of certificates, including a Certificate of Capacity dated 30 October 2020.
In a letter “to whom it may concern” dated 20 September 2020, Dr Chang recorded that the applicant was initially seen on 24 April 2019 following attendance at the St Vincent’s Hospital Emergency Department “where he presented with a two week history of exacerbated symptoms of left Meniere’s Disease, manifest by debilitating vertigo and nausea, severe imbalance and unilateral left low tone hearing loss with associated tinnitus”.
Dr Chang recorded that the applicant gave a history of a fall in October 2014 and “shortly after this trauma, had his first attack of Meniere’s Disease”.
Dr Chang stated that:
“Although Craig may have been predisposed to Meniere's Disease and has not been medically documented, it Is my opinion that the trauma suffered may have been an aggravator or contributing factor, especially considering the short timeframe in which the Meniere"s Disease became apparent.”
In a Certificate of Capacity dated 30 October 2020, Dr Chang relevantly noted:
“Original workers compensation claim 105959-1164 was submitted for patient in 2014 with stated date of injury 24/1012014.
Therefore Section 2 shaded field above left blank as initial certificate paperwork (claim) was lodged at time of workplace injury in 2014.
Participated in rehabilitation and returned to work following 2014 injury...
Then within a short timeframe following the workplace injury, developed further chronic health issues with the onset of Meniere's Disease where the workplace accident served as an aggravator, contributing factor, to the Meniere's Disease. Continued working with this condition however, the Meniere’s worsened…”

Dr Morozova

Dr Morozova, treating general practitioner (GP), provided a number of medical certificates.
In Certificates of Capacity dated 31 October 2014 and 25 May 2015 (the latter repeating the history recorded below by the former), Dr Morozova recorded:
“Work sport day, during one of the activities he was running, tripped and fell onto his left side (on dirt and grass).
Initially fell onto the left arm, then on to the Left shoulder.
Immediately felt pain in his Left upper arm and shoulder.
also has a 5x 2 cm bruise on his Right hip.
Pt also developed clicking sound in his Left shoulder and pain in his Left side of neck (posteriorly) radiating to the scapula.”

Dr Scoppa

Dr Scoppa, ear, nose and throat physician, provided medicolegal reports to the applicant’s solicitors dated 4 April 2021, 11 May 2021, 28 September 2022 and 26 November 2022.
In his report dated 4 April 2021, Dr Scoppa recorded a history that the applicant:
“…said he was running whilst carrying the ball sprinting on hard grass and dirt when he tripped and fell on the left shoulder. He said that as the shoulder hit the ground his head also continued to carry momentum causing him to strike the ground with the left side of the head just above the outer ear.
He said that he momentarily lost consciousness and blacked out and when he came to he said that he "was seeing stars", causing him to suspect that he had sustained loss of consciousness…”
Dr Scoppa also noted that the applicant “…said his left ear became ‘blocked’ in about early 2015 when he started to experience intermittent tinnitus in the left ear. This fluctuating hearing loss persisted and continued to recur thereafter…” and “…he developed tinnitus in about early to mid February 2015. He said the tinnitus came on gradually over a period of about 2 weeks, and initially it would come and go…” Dr Scoppa noted the tinnitus persisted and became more troublesome and more frequent and then became associated with hearing loss. He noted a history of worsening symptoms through 2018 and by
March 2019 the symptoms had become severe, following which he was referred to
Dr Chang. Dr Scoppa noted the treatment provided by Dr Chang.
Dr Scoppa noted no history of any other head or ear injury, nor history of ear infection, nor family history of deafness or ear disease, and no history of exposure to firearms, ototoxic drugs, or to recreational or occupational noise.
Dr Scoppa was of the opinion the applicant developed delayed post-traumatic endolymphatic hydrops (Meniere’s Disease) involving the left ear, caused by head trauma sustained in the injury that occurred on 24 October 2014. Dr Scoppa was of the opinion the applicant’s employment with the respondent was a substantial contributing factor to the development of the injury of delayed post-traumatic endolymphatic hydrops (Meniere’s Disease) involving the left ear. Dr Scoppa noted that delayed post-traumatic Meniere’s Disease had been reported in medical literature, and he provided specific references.
In his report dated 11 May 2021, Dr Scoppa was asked to comment on the reports of Dr Niall dated 26 February 2021 and 10 May 2021 in respect of the different impairment ratings and any other comments that he may have. Dr Scoppa noted that Dr Niall in his report dated
26 February 2021, like Dr Scoppa himself, assessed total left sensorineural hearing loss attributable to Meniere’s Disease induced by acute occupational trauma. Dr Scott Parker proceeded then to deal with the calculations of permanent impairment, noting that Dr Niall did not assess vestibular impairment.
In his report dated 28 September 2022, Dr Scoppa provided his opinion with respect to current fitness for work.
In his report dated 26 November 2022, Dr Scoppa considered the report of Dr Niall dated
18 November 2022, together with the letter of instruction from the respondent’s solicitors to Dr Niall dated 10 October 2022 and attachments. Dr Scoppa was also asked to consider the statements of the applicant dated 1 September 2021 and Ms Halabi. Dr Scoppa was requested to provide his opinion, on the assumption that these statements are correct, whether the applicant’s accident on 24 October 2014 caused his condition of Meniere’s Disease, or was responsible for a material aggravation, acceleration, exacerbation or deterioration of the disease.
Dr Scoppa was of the opinion that the symptoms reported by the applicant in his statement were consistent with severe concussive head trauma probably causing acute brain injury, but such symptoms were not per se diagnostic of specific injury and such a diagnosis could only be made following expert medical assessment where there is access to diagnostic imaging equipment such as MRI and CT scanning.
Dr Scoppa was also of the opinion that:
“the specific reporting of imbalance and being wobbly on his feet is also suggestive of an inner ear injury to the vestibular part of the inner ear. Again there are many possible inner ear injuries consistent with such trauma, including perilymph fistula, and temporal bone fracture or trauma.
These acute symptoms as reported at the time are not consistent in my opinion with immediate onset of Meniere’s Disease, because this condition does not occur immediately following head trauma, and often occurs in the absence of head trauma.
Nonetheless if such head trauma had caused petrous temporal bone inner ear impairment then such impairment could in time have progressed asymptomatically to eventually cause delayed onset of Meniere’s Disease, as noted in my previous reports and the medical literature, and as noted in my previous reports in my opinion this is what transpired in this matter following the acute head injury and subsequent history of vestibular impairment.”

Dr Scoppa noted that in his report dated 18 November 2022, Dr Niall appeared to agree that head trauma can cause Meniere’s Disease but appeared to reject the possibility that delayed Meniere’s Disease can occur following head trauma. Dr Scoppa delayed Meniere’s Disease probably did result from head trauma and he had provided medical evidence in the literature that reports this occurrence.

Dr Niall

Dr Niall, consultant occupational physician and audiological physician, provided medicolegal reports to the respondent’s solicitors dated 26 February 2021, 10 March 2021 and
18 November 2022.
In his report dated 26 February 2021, Dr Niall noted a history that the applicant “had a neck of left humerus fracture in October 2014 in a heavy fall on the left shoulder with impact of the head too on the ground on the left side”. Dr Niall also noted that in February 2015 the applicant “noticed tinnitus in the left ear with aural fullness becoming worse causing a visit to his GP two to three weeks later…” and “… He saw Dr Becarovski about two weeks later when fluctuating hearing loss was noticed. There were no balance problems until 2018…” and “hearing continued to deteriorate and vertigo became much worse and more frequent… Hearing was much worse”. Dr Niall noted subsequent surgical treatment.
Dr Niall noted that there was no history of ear discharge, hereditary deafness, ototoxic drug therapy, middle ear infection, other cochleotoxic infection, firearms use or military service, or other relevant serious medical conditions.
Dr Niall was of the opinion that:
“The worker suffered a head injury at work in a fall which also caused a humerus fracture. According to the history given by the worker the fall occurred in October 2014 and audiovestibular symptoms became apparent in February 2015 and gradually worsened as set out above.
There are no relevant medical reports as to his audiovestibular status from this time. Head injury trauma can precipitate Meniere’s disease and it is considered that it is likely on the evidence available that this is what occurred here.
There is no historical evidence of this condition pre-accident. On the evidence it is not the aggravation of a pre-existing condition.”
Dr Niall was of the opinion that employment was the main contributing factor to the applicant’s Meniere’s Disease and his employment was a substantial contributing factor to the inner ear injury.
In his report dated 10 March 2021, Dr Niall confirmed that his opinion in relation to causation was based upon the acceptance that the applicant “struck his head on the floor in conjunction with a fall causing a contemporaneous fracture of the upper arm”.
Dr Niall noted that he assumed as asked that:
“there was no mention of head injury at the time of attendance, and also that there was no loss of consciousness in association with his fall. As to unconsciousness he denied any history of unconsciousness to me in respect of his fall.”
Dr Niall stated that on the basis of the above history only and “noting the time between the fall and the onset of the workers audiovestibular symptoms I would not change my opinion on causation of his Meniere’s disease”.
In his report dated 18 November 2022, Dr Niall referred to his letter of instruction from the respondent’s solicitors dated 10 October 2022. In that letter, the respondent’s solicitors stated:
“…
Causation
Please assume the following:-
1.      The worker either did not strike his head on the ground on 24 October 2014, or any contact between the head and the ground was not sufficient to cause any external sign of injury, any complaint of head injury at the time, or any loss of consciousness. Please refer to:-
(a) When the worker attended Sydney Hospital, there was no complaint of loss of consciousness or of injury other than to the left upper limb. It was specifically noted that there was no other injury.
(b) Medical Certification dated 31 October 2014 contains a detailed description of injuries and does not include head injury.
2.      St Vincent’s Hospital notes refer to Meniere’s disease since either 2015 or 2016, with two episodes in 2017 and three episodes in 2018.
3.      The worker states that he started to notice hearing loss leading to a course of steroid treatment in 2016.
4.      The worker attended Sydney Hospital Emergency Department in April 2019 with a history of two weeks (our emphasis) of debilitating vertigo, nausea, imbalance, unilateral left low tone hearing loss and tinnitus.
…”
Dr Niall stated:
“Upon the assumptions the injury of 24th October 2014 did not cause the worker’s Meniere’s disease nor was the injury responsible for an aggravation, acceleration, exacerbation or deterioration of that disease.
Meniere’s disease may uncommonly or rarely be caused by head injury of which the worker gave a history as set in my report of 26 February 2021. Absent the latter the onset of Menieriform symptoms in and from February 2015 cannot reasonably be attributed to the worker’s fall at work approximately four months earlier.
The developing Meniere’s disease was not on the history given the aggravation, acceleration, exacerbation or deterioration of a condition existing before the injury of 24th October 2014. On the assumptions I am asked to make employment was not the main contributing factor to the injury. On the assumptions made there is no causal nexus between the head injury and the emergence of Meniere’s disease in subsequent years.”

Findings and reasons

The respondent submitted that there was an absence of any contemporaneous evidence to support any kind of head injury, let alone one that is of sufficient and acute quality in these circumstances. The respondent also submitted that the applicant had not made out a case that these circumstances were one of those rare or uncommon events where the diagnosed condition results from the trauma, particular having regard to why a trauma on 24 October 2014 was productive of the serious symptoms that the applicant experienced in March 2019. The respondent also submitted that with other types of disease exposure there can be a period of latency between the exposure and the presentation of symptoms but in this case there has been no suggestion from the medical experts as to how that would be the case so far as Meniere’s Disease is concerned.
In relation to the clinical records of the St Vincent’s Hospital of 24 October 2014, in my view such records were a summary of the applicant’s history and presentation with respect to the mechanism of the fall, having regard to his significant discomfort with respect to a clear injury to the left shoulder which required treatment. The injury was briefly described as a trip and fall onto the applicant’s left shoulder, a not unreasonable description in the context of a busy Sydney Hospital emergency department and a patient with significant left shoulder pain and X-ray findings of a multi-fragmented fracture. The clinical notes did not record that there was a “big fall” as Ms Halabi recalled that the applicant told the examining staff. Although it was recorded that there was “no other injury”, there was of course no record of questions asked of the applicant and his responses, as this was not a forensic medicolegal analysis. There was also no reference to right hip bruising, as noted in the Certificate of Capacity dated
31 October 2014.
The applicant explained in his statement that by the time he reached the Sydney Hospital he no longer had the symptoms of grogginess, disorientation or wobbliness and he felt extreme pain in his left arm and shoulder. He explained that the medical staff at the Sydney Hospital did not ask him about his head or whether he had a concussion. Ms Halabi recalled that the applicant was disoriented and in obvious shock, and he seemed to be unsteady on his feet as he walked to the Sydney Hospital.
Both parties acknowledged that the “LOC” recorded in the clinical notes of the Sydney Hospital were a reference to “loss of consciousness”, that is it was recorded that there was no loss of consciousness. The respondent submitted that such a note recorded by a medical practitioner would only be made after careful consideration and questioning in respect of relevant matters. However, the descriptions of the fall recorded by the Sydney Hospital were that of falling over, or of “running on grass” and a trip and fall on the left shoulder. In this context, acceptance at face value of the note “no LOC” would require assumptions to be made that the clinicians’ understanding of the mechanics of the fall was accurate, which in my view it was not, as the applicant was running on half packed dirt and grass, according to the applicant and Ms Halabi. There was also no mention of the force of the fall, in the sense that there was a “big fall” described by the applicant, as noted by Ms Halabi. There was no record of the questions and answers provided by the applicant in this regard, nor was there a record of the applicant’s understanding of the purpose of such questioning. The applicant said that he was not asked about his head nor was he “checked for concussion”.
Indeed, the applicant’s statement and the history recorded by Dr Scoppa were not definite as to loss of consciousness. The applicant stated that he blacked out for a few seconds after the fall and he experienced stars in his eyes shortly afterwards. Although Dr Scoppa noted that the applicant said that he momentarily lost consciousness and blacked out after the fall, this in my view was qualified when it was also noted that the applicant said that he was seeing stars causing him to suspect that he had sustained loss of consciousness.
In any event, I understand the submission put forward by the respondent to be that this was further contemporaneous evidence which did not record or support a history of head or brain trauma on 24 October 2014.
In relation to the Certificates of Capacity dated 31 October 2014 and 25 May 2015, there was no mention of head trauma or head injury. Somewhat more detail as to the mechanism of injury was provided, although similarly there was no detail as to the force of the fall, and also that the applicant was unable to use his arms to break his fall as he was carrying the ball. In my view, this was a summary of the mechanism of the fall and the history of injury for similar reasons to those described above in relation to the Sydney Hospital. That is, treatment was provided for an indisputable frank injury to the left shoulder in consultation with a busy general medical practitioner practice. The Certificates, not unreasonably, did not record the questions asked and the answers provided by the applicant and they did not purport to be a verbatim record of the applicant’s consultations with the GP. The current lack of capacity for work at that time was in respect of the left shoulder. The applicant said that he started to notice the symptoms in relation to Meniere’s Disease in early 2015, but the respondent noted that the Certificate of Capacity of 25 May 2015 made no mention of head injury on
24 October 2014. However, the same considerations apply to those in respect of the certificate of 31 October 2014. In my view the certificate of 25 May 2015 is again a summary of the mechanism and history of injury, and indeed it was a repetition of the same summary that was recorded on 31 October 2014, not inconsistent with the provision of treatment in a busy GP practice in respect of an indisputable frank injury to the left shoulder.
I exercise caution when considering the clinical notes of the Sydney Hospital and the Certificates of Capacity of Dr Morozova. As was observed in Davis v Council of the City of Wagga Wagga[2], “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury”. Apparent inconsistencies, that is between the applicant’s statement and the contemporaneous records of the Sydney Hospital and the Certificates of Capacity of Dr Morozova, or to put it another way, the lack of contemporaneous record of head trauma on 24 October 2014, in my view should be approached with caution, having regard to the reasoning of Basten JA in Mason v Demasi[3].
[2] [2004] NSWCA 34 at [35].
[3] [2009] NSWCA 227 at [2].
For the above reasons, in my view there is insufficient weight to be given to the clinical records of the Sydney Hospital and the Certificates of Capacity of Dr Morozova to outweigh the evidence of the applicant that in the fall of 24 October 2014 the left side of his head just above the ear struck the ground.
There were competing submissions as to the meaning to be given to the paleness of the applicant’s face immediately after the accident. I am unable to conclude whether this was because of injury to the head or to the left shoulder.
In any event, this is in my view not material, as it was the evidence of Ms Halabi that the applicant seemed to be disoriented and was in obvious shock before the left shoulder pain set in, and he was also unsteady on his feet when he was walking to the Sydney Hospital. This evidence in my view supports the applicant’s evidence that when the left side of his head just above the ear struck the ground he felt off-balance and unsteady immediately after the accident and he had to sit down. I accept the applicant’s evidence in this regard.
The respondent also queried the lack of description of the size of the ball and how the applicant was carrying it immediately before the accident. In my view, these issues were not material to a consideration of the relevant mechanism of the accident. Of significance was the evidence of the applicant that he was carrying the ball when he fell, and he was unable to use his arms to break the fall.
I find that on 24 October 2014 the applicant’s left side of his head just above the ear struck the ground. It is not necessary to find whether or not the applicant sustained loss of consciousness, for the reasons discussed below in relation to the reports of Dr Scoppa.
I do not prefer the opinion of Dr Niall as to causation, as I have found contrary to the assumption implicitly made in his report dated 18 November 2022, that is that he assumed that there was no head injury on 24 October 2014, although that assumption was not made clear in his reasoning. Dr Niall in the same report stated that he assumed that the injury of
24 October 2014 did not cause Meniere’s Disease, nor did it aggravate the Meniere’s Disease. This apparently was an assumption of the conclusion as to causation, contrary to the task of providing a reasoned opinion as to causation. Moreover, Dr Niall continued in his reasoning that “absent the latter” the onset of symptoms in and from February 2015 cannot reasonably be attributed to the worker’s fall at work approximately four months earlier. However, it was in my view ambiguous as to what Dr Niall meant by “absent the latter”. He may have referred to an absence of injury to the applicant’s head on 24 October 2014, or he may have referred to absence of uncommon or rare causation by head injury. Dr Scoppa in his report of 29 November 2022 interpreted the opinion of Dr Niall to mean that Dr Niall agreed that head trauma can cause Meniere’s Disease but Dr Niall appeared to reject the possibility that delayed Meniere’s Disease can occur following head trauma. On this point, I prefer the opinion of Dr Scoppa as he has provided an explanation with reference to medical literature, and Dr Niall did not explain and clarify this aspect of his reasoning.
Dr Chang in his letter of 20 September 2020 was of the opinion that the trauma of the fall in October 2014 may have aggravated or been a contributing factor to the Meniere’s Disease, especially considering the short timeframe in which it became apparent, that is the applicant had his first attack of Meniere’s Disease shortly after that trauma. However, in the context of a short letter, Dr Chang did not provide a medicolegal opinion as to how the applicant may have been predisposed to Meniere’s Disease and he was not clear as to the timeframe and meaning of the “first attack” of Meniere’s Disease. The respondent also submitted that the chronology of the onset of Meniere’s Disease did not support the short timeframe referred to by Dr Chang. In any event, I do not prefer the opinion of Dr Chang, as both Dr Niall and
Dr Scoppa took histories which precluded pre-existing injury or conditions and both were of the opinion that there was no pre-existing Meniere’s Disease or predisposition to Meniere’s Disease.
In my view, Dr Scoppa provided reports and opinion based upon a history that is consistent with the finding of injury to the applicant’s head on 24 October 2014. It is the case that in his report dated 26 November 2022 Dr Scoppa provided two possible diagnoses, that is severe concussive head trauma probably causing acute brain injury, subject to expert medical assessment in an acute trauma hospital emergency department with access to diagnostic imaging equipment such as MRI and CT scanning, and also head trauma causing petrous temporal bone inner ear injury and impairment progressing asymptomatically to eventually cause delayed onset of Meniere’s Disease. Dr Scoppa did not conclude that there was acute brain injury, nor did he suggest that any such acute brain injury caused Meniere’s Disease.
In particular, it was the opinion of Dr Scoppa that the specific report of imbalance and being wobbly on his feet was also suggestive of an inner ear injury to the vestibular part of the inner ear, and, while acute symptoms as reported at the time of injury were not consistent in his opinion with the immediate onset of Meniere’s Disease, as this condition does not occur immediately following head trauma and often occurs in the absence of head trauma, what transpired in this matter following the acute head injury and subsequent history of vestibular impairment was that such head trauma had caused petrous temporal bone inner ear impairment and such impairment in time progressed asymptomatically to eventually cause delayed onset of Meniere’s Disease.
I do not accept the respondent’s submission that Dr Scoppa in his most recent opinion that what the applicant reports in his statement were symptoms consistent with the concussive head trauma, probably causing an acute brain injury and suggestive of inner ear damage. This in my view conflates the two separate diagnoses described by Dr Scoppa above. The respondent also submitted that, in noting that there are many possible inner ear injuries consistent with such trauma, Dr Scoppa did not explain how they relate to Meniere’s Disease. I do not accept this submission, as in my view Dr Scoppa explained that, following the acute head injury and subsequent history of vestibular impairment, such trauma caused petrous temporal bone inner ear impairment which in time progressed asymptomatically to eventually cause delayed onset of Meniere’s Disease. Dr Scoppa relied upon the specific reporting of imbalance and being wobbly on the feet as being suggestive of an inner ear injury to the vestibular part of the inner ear. Of the many possible inner ear injuries consistent with such trauma, Dr Scoppa noted temporal bone fracture or trauma.
The respondent also submitted that it was not clear from Dr Scoppa’s opinion as to how long a head trauma could have caused a petrous temporal bone inner ear impairment to progress asymptomatically, nor whether there was a petrous temporal bone inner ear impairment, nor whether it is one of the traumatic events that the doctor contemplated could have occurred as a result of the injury that he had assumed. It was also submitted that given the chronology the applicant had not provided sufficient explanation as to why a trauma on 24 October 2014 was productive of the serious symptoms that he experienced in March 2019. I do not accept these submissions.

Dr Scoppa took a history of the onset of symptoms and the worsening of symptoms from early 2015 that was consistent with what was described in the applicant’s statement. This history was also broadly consistent with the history recorded in the clinical notes of the
St Vincent’s Hospital, that is the onset of symptoms of Meniere’s Disease in 2015 with significant episodes in 2017, 2018 and 2019. Dr Scoppa had noted in the history recorded in his report of 4 April 2021 that the applicant’s left ear had become blocked in about early 2015 when he started to experience intermittent tinnitus in the left ear and this fluctuating hearing loss persisted and continued to recur thereafter. He also noted the history that intermittent tinnitus developed in about early to mid February 2015 and in about early March 2015 his GP referred the applicant to Dr Becvarovski, who investigated thoroughly and advised the applicant that he thought he had developed post traumatic endolymphatic hydrops.
Dr Scoppa recorded also that the tinnitus persisted and became more troublesome and more frequent and associated with hearing loss, for which Dr Becvarovski treated the applicant with systemic steroids for about five days, which were effective in reducing symptoms in the short term and by early 2016 with development of minimal tinnitus following prednisone treatment. However, the tinnitus and hearing loss became more severe and by early 2018 that in addition to the tinnitus he had developed light-headedness and imbalance lasting up to five days before resolving, such symptoms continuing throughout 2018. Dr Scoppa noted that by March 2019 the applicant’s symptoms were so severe that he did not go to work for one week and the subsequent treatment by Dr Chang was noted.
While it is the case that Dr Scoppa did not state how long a head trauma could have caused a petrous temporal bone inner ear impairment to progress asymptomatically, in my view his report must be read as a whole, including with regard to the history as recorded in the previous paragraph. In my view it is not necessary for Dr Scoppa to specify how long such a head trauma could have caused asymptomatic progression in circumstances where
Dr Scoppa has recorded a detailed history of the progression and nature of the applicant’s symptoms over time.
Similarly, in my view the detailed history recorded by Dr Scoppa, as noted above, provides the context and explanation as to the progression of symptoms over time. It was simply not the case that there was an unexplained chronology of head trauma on 24 October 2014 followed by the serious symptoms experienced in March 2019.
It was submitted by the respondent that there was no suggestion from the medical experts as to how in the case of Meniere’s Disease there can be a period of latency between the exposure of the event and the presentation of symptoms. However, Dr Scoppa concluded in his report of 26 November 2022 that it was his opinion that such head trauma had caused petrous temporal bone inner ear impairment and that such impairment in time progressed asymptomatically to eventually cause delayed onset of Meniere’s Disease, as he had noted in his previous reports and his references to the medical literature. This opinion in my view should be read in the context of the history recorded by Dr Scoppa of the onset and progression of symptoms, as noted above. In my view this is sufficient explanation as to the latency between the head trauma on 24 October 2014 and the presentation of symptoms commencing in early 2015 and progressing as recorded by Dr Scoppa.
I do not accept the respondent’s submission that the applicant’s evidentiary statement that is before the Commission militates against the history that was recorded by Dr Scoppa in his medicolegal reports. It was not entirely clear to me as to what part of the applicant’s statement militates against the version recorded by Dr Scoppa, but if it was meant to suggest that the record taken by Dr Scoppa as to loss of consciousness was not made out by the lack of contemporaneous records in this regard, then this submission is not accepted for the reasons given above. In any event, in my view when the reports of Dr Scoppa are considered as a whole, it was the history of head trauma, and not loss of consciousness, that was relied upon in his reasoning process.
At this point, in summary I note that the essential argument by the respondent against the foundations of the opinion of Dr Scoppa was based upon the premises that first he had not explained the causal link between the incident on 24 October 2014 and the unspecified or unexplained period of latency of the onset of symptoms; and, second, he had not explained the nature of the disease that he had diagnosed, namely Meniere’s Disease; and, third, he had not explained how the fall on 24 October 2014 was an uncommon or rare event, as formulated by Dr Niall, such that it caused the later onset of Meniere’s Disease.
As to the third premise, Dr Niall stated that “Meniere’s disease may uncommonly or rarely be caused by head injury of which the worker gave a history as set in my report of 26 February 2021.” Dr Niall then proceeded to reject causation on the basis noted above, that is that the head injury had not occurred. In my view the opinion of Dr Niall did not reject the argument that the applicant’s history of head injury was an instance where Meniere’s Disease may uncommonly or rarely be caused by head injury. Dr Scoppa agreed with this aspect of
Dr Niall’s view, although he diverged with Dr Niall in other respects as noted above. In my view, where there is no dispute on the expert medical opinion that the applicant’s history, which I have found, of a fall and head injury on 24 October 2014 was such an uncommon or rare event by way of causation, then in view it was not necessary for Dr Scoppa to explain how this was such an uncommon or rare instance of causation.
As to the second premise, it has been observed that the word “disease" is “apt to describe any abnormal physical or mental condition that is not purely transient…”[4] In this case there was no dispute that the applicant suffered Meniere’s Disease, which was diagnosed by both Dr Scoppa and Dr Niall with reference to the applicant’s symptoms. Where there is no dispute that the described symptoms substantiate the diagnosis of Meniere’s Disease, in my view it is not necessary to further identify the pathology. Dr Scoppa identified the initial pathological process, that is, with reference to the specific reporting of imbalance and being wobbly, as suggestive of inner ear injury to the vestibular part of the inner ear, and that the head trauma had caused petrous temporal bone inner ear impairment, such impairment over time progressing asymptomatically to eventually cause Meniere’s Disease. This was the pathological process Dr Scoppa opined had taken place, when he stated that “as noted in my previous reports in my opinion this is what transpired in this matter following the acute head injury and subsequent history of vestibular impairment”. I have accepted the applicant’s statement, particularly with respect to the onset and progression of symptoms that he described.
[4] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246 Windeyer J at [272].
As to the first premise, as to what was effectively said to be the lack of explanation or identification of the period of latency or delayed onset, I note that this was framed with respect to a chronology said to relate to a lack of explanation as to how the initial traumatic event of 24 October 2014 resulted in onset of serious symptoms in March 2019. As noted above, the history of onset and progression of symptoms was more extensive, commencing in 2015, than suggested by the respondent.
Accordingly, I accept and prefer the opinion of Dr Scoppa as to causation in this matter.
Applying the reasoning of the Court of Appeal in Kooragang Cement Ltd v Bates[5], it is necessary to make a common sense evaluation of the causal chain. At the time of the injury to the left side of his head just above the ear on 24 October 2014, the applicant had symptoms of wobbliness and imbalance. Following the injury the applicant underwent treatment for the undisputed injury to his left shoulder. The applicant’s left ear had become blocked in about early 2015 and in February 2015 he started to experience intermittent tinnitus in the left ear and this fluctuating hearing loss persisted and continued to recur thereafter. I tinnitus persisted and became more troublesome and more frequent and associated with hearing loss, for which Dr Becvarovski treated the applicant with systemic steroids for about five days, which were effective in reducing symptoms in the short term and by early 2016 with development of minimal tinnitus following prednisone treatment. However, the tinnitus and hearing loss became more severe and by early 2018 that in addition to the tinnitus he had developed light-headedness and imbalance lasting up to five days before resolving, such symptoms continuing throughout 2018. Dr Scoppa noted that by March 2019 the applicant’s symptoms was so severe that he did not go to work for one week. Applying a commonsense view, I accept the opinion of Dr Scoppa as to causation and in my view the causal chain between the incident on 24 October 2014 and the applicant’s Meniere’s Disease is established.
[5] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
It was submitted by the applicant that, following the reasoning in the decisions of Neilsen J in Lyons v Master Builders Association of NSW[6], and the Court of Appeal in Rail Services Australia v Dimovski[7], that where there is a frank injury setting in train a disease process then that is an injury simpliciter within the meaning of s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) and it is not necessary to proceed to the deeming provisions of ss 15 and 16.
[6] (2003) 25 NSWCCR 422.
[7] [2004] NSWCA 267; (2004) 1 DDCR 648.
As was observed by Gleeson CJ and Kirby J in Kennedy Cleaning v Petkoska[8], if the evidence relevantly amounts to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word.
[8] [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298 at [39].
That is the case here, as in my view there was a frank injury to the applicant’s head on 24 October 2014, which resulted in a sudden and ascertainable disturbance of the applicant’s physiological state in which there were symptoms of imbalance and wobbliness that were accepted by Dr Scoppa as such, and such injury to the applicant’s head set in train a disease process, being Meniere’s Disease. I also accept the opinion of Dr Scoppa that the applicant’s employment with the respondent is a substantial contributing factor to the applicant’s head injury on 24 October 2014 and to the Meniere’s Disease.
I find pursuant to s 4(a) of the 1987 Act, that the applicant sustained injury to his head on 24 October 2014 and that such injury set in train Meniere’s Disease. I also find pursuant to
s 9A of the 1987 Act that the applicant’s employment with the respondent was a substantial contributing factor to the injury to the applicant’s head on 24 October 2014 and to the Meniere’s Disease.

[2023] NSWPIC 16

16 January 2023