Clarke v City of Ryde
[2022] NSWPIC 261
•1 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Clarke v City of Ryde [2022] NSWPIC 261 |
| APPLICANT: | Simon Clarke |
| RESPONDENT: | City of Ryde |
| MEMBER: | Christopher Wood |
| DATE OF DECISION: | 1 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for determination of whether injured worker suffered injuries to his cervical and thoracic spine in addition to injuries to lumbar spine, cardio vascular system and TEMSKI/scarring for the purposes of medical assessment of whole person impairment; significant medical investigation of reported symptoms inconclusive; contemporaneous complaints of symptoms consistent with claimed injury recorded in workers compensation claim form on day of accident; parties agreed matters in issue related solely to determination of whether injury suffered to cervical and thoracic spine; |
| DETERMINATIONS MADE: | 1. The applicant suffered injuries to his cervical and thoracic spine in the course of his employment with the respondent on 15 December 2016. 2 The Application to Resolve a Dispute is remitted back to the President for referral to a medical assessor to determine his level of whole person impairment as a consequence of all body parts listed in the Application to Resolve a Dispute. |
| NOTATIONS MADE: | 1. Documents to be referred include (a) this Certificate of Determination; (b) the Application to Resolve a Dispute and attachments, and (c) the Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr Simon Clarke, was employed by City of Ryde (the respondent) from 2015 as a leading hand landscaper.
On 15 December 2016 while lifting and carrying a base plate, during the construction of a concrete path, he heard a loud popping sound in his back which caused him to fall to the ground. Subsequently Mr Clarke was taken to Ryde Hospital on the day. He was able to return to work in the first quarter of 2017 and took place in a work trial. He found his continuing back pain sufficiently bad for him to cease work thereafter.
Mr Clarke’s claim for workers compensation benefits has been accepted and he now makes a claim for lump sum compensation by reason of whole person permanent impairment involving a number of body parts being injured; the lumbar spine, thoracic spine, cervical spine, cardiovascular system and TEMSKI[1]/scarring.
[1] Table for the Evaluation of Minor Skin Impairments
The respondent contends that the thoracic spine and cervical spine injuries ought be excluded from any assessment of Mr Clarke’s whole person permanent impairment.
ISSUES FOR DETERMINATION
The parties agree that the only issue to be determined before Mr Clarke’s claim is referred to a medical assessor for assessment of his whole person impairment is whether he suffered injuries to his thoracic and cervical spine in the incident on 15 December 2016.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The parties attended a teleconference on 28 March 2022. Mr Bell appeared for the applicant and Mr Kemp for the respondent.
The points of difference set out above were agreed and were said to be insurmountable.
There was a joint request for referral to conciliation and arbitration which took place on 10 May 2022. At that time the parties were also represented by counsel, Mr Morgan for the applicant and Mr Stockley for the respondent.
Counsel informed me that they had made further attempts to resolve the matter but the options that each had proposed to the other were “unpalatable”. Accordingly, I am satisfied that the matter ought proceed to arbitration which took place following the brief period of conciliation referred to.
ORAL EVIDENCE
There was no application made to lead oral evidence or to cross examine Mr Clarke or any other witness.
FINDINGS AND REASONS
Medical evidence
There is a voluminous amount of medical evidence before the commission. I have had regard to, but do not propose to unnecessarily traverse it, in the reasons that follow.
Mr Clarke has provided a statement and the documents filed on his behalf also include a contemporaneous workers compensation claim form completed while he was receiving treatment in Ryde Hospital on the day of his accident.
There is no doubt that since his accident Mr Stevens has presented with a complex array of symptoms. There has been considerable care and effort taken by various treating doctors to identify an objective organic explanation for what he contends is continuing thoracic and cervical spine pain with related symptomology over and above what has been conceded by the respondent to be a (frank) lumbar spine injury for which he is entitled to be compensated.
Detailed submissions were made by both counsel on behalf of the parties. The various competing medical opinions were comprehensively referred to by both barristers, as were the diagnostic reports (X-ray, MRI and the like) to which the various medical practitioners involved in assessing and treating Mr Clarke’s condition, have referred.
There is unsurprisingly a dichotomy of opinion and in many ways the inability of the various medical practitioners to explain the origin of Mr Clarke’s symptoms in so far as his thoracic and cervical spine are concerned makes the respondent’s case in many respects more compelling. Mr Stockley carefully stepped through the reports and diagnostic evidence, noting the lack of any convincing clinical evidence or explanation for Mr Clarke’s referred pain and the absence of support for cervical radiculopathy. He urges caution in accepting Mr Clarke’s more recent statement linking his cervical and thoracic pain to the accident.
Without ignoring the body of medical evidence referred to in submissions the competing positions are primarily encapsulated by Drs Houang and Dixon for Mr Clarke and Drs Cochrane and Korber for the respondent.
Dr Korber’s report served late is thorough and draws together the threads of the significant diagnostic processes undergone by Mr Clarke. It may indeed be inherently implausible that there was a fracture of the cervical spine in the incident. The respondent drew attention to Dr Huang’s failure to engage directly with Dr Korber’s views on the absence of evidence showing neurological injury. Dr Dixon records Mr Clarke mentioning the radiation of pain into the arms.
That said and with respect to both parties, it seems the points of difference between them may have become unnecessarily complicated in analysing whether or not Mr Clarke suffered an injury to his thoracic and cervical spine on 15 December 2016. It is of course important however that the voluminous medical evidence which before the commission is available to a future medical assessor.
Workers Compensation Claim Form
Much has been made by the respondent of the absence of reference to an injury to the cervical and thoracic spine at the time of Mr Clarke’s admission to Ryde Hospital on the day of his accident.
The respondent contends with some force that because of the absence of any objective signs of injury and a lack of reporting of thoracic and neck pain until more recently, including his own statement, that the commission ought find that Mr Clarke suffered no injury to his thoracic and cervical spine on 15 December 2016. However, it is equally important to be cautious here in weighing the evidence and have regard to the Court of Appeal decision in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34. There is a real possibility that Mr Clarke, on being admitted to Ryde Hospital on the day of his accident, found himself in not dissimilar situation to the facts underpinning that decision.
It is entirely plausible that errors or omissions in note taking by Ryde Hospital medical staff were a function of a focus on the clearly dominant injury to the lumbar spine.
Mr Clarke would have been in a great degree of pain and no doubt distracted at the time. However, despite this he saw fit to mention not being able to feel his arms or tingling radiating into his arms and other symptoms consistent with an injury to his thoracic and cervical spine. The completion of a workers compensation claim form is referred to in the hospital notes included in the evidence filed to support the Application to Resolve a Dispute (ARD)[2].
[2] See page 131 of the ARD.
The claim form is of itself compelling, contemporaneous evidence. Viewed objectively it is hard to accept that on the day of his accident Mr Clarke would have had a deliberate eye to manufacture symptoms and maximising his compensation claim by mentioning body parts or symptoms which he did not suffer injury to in addition to those referrable to the lumbar spine.
I commented during the arbitration that perhaps Mr Clarke may have suffered a minor musculo-ligamentous strain which he quickly overcame. Dr Tran the treating general practitioner recorded complaints going to a cervical and possibly thoracic spine injury after Mr Clarke’s discharge from hospital and into mid 2017[3], referring Mr Clarke for neurological investigation and physiotherapy treatment to both the lumbar and thoracic spine. True enough it is that broadly thereafter there is then an absence of complaint of cervical and thoracic symptoms until 2019. One can understand therefore the respondent’s urging of caution in accepting more recent statements.
[3] See for example Dr Coughlan’s report of 17 June 2017.
The Commission does not however, need to determine whether the impact of that initial injury, musculo ligamentous or otherwise, continues to the point pf permanent disability. That is a matter for the medical assessor. It is sufficient for me to be satisfied that there were symptoms consistent with a cervical and thoracic spine injury reported contemporaneously by Mr Clarke at the time he was admitted to hospital. Dr Cochrane, as Mr Morgan pointed out, had the earliest involvement from a medico legal perspective. Dr Cochrane in recording Mr Clarke’s presentation at Ryde Hospital appears to make something of a concession on this point in his report of 24 March 2020 when he says:
“I am therefore not of the opinion that any current cervical spine condition or injury can be considered consequential to the lumbar spine injury or consequential to the work related incident”.
This statement is not inconsistent with there having been some injury with related symptoms at the time of the accident or even what might be loosely described as a soft tissue injury which has resolved at some point in 2017 or 2018 with other causes being relevant to current presentation.
That said, as I have said, it is not necessary or appropriate for me to determine whether Mr Clarke’s current complaints have any organic basis still referrable to the accident.
I find that the Mr Clarke suffered an injury to his cervical and thoracic spine on 15 December 2016. Whether this was material or merely a temporary upsurge in symptomology consequent upon an aggravation or part of what seems to be a more significant injury further down the spine is immaterial to such finding. The contemporaneous completion of an incident report form and reference to that in the Ryde Hospital notes is compelling in reaching this conclusion.
The matter should be remitted to the President for referral to a medical assessor for a finding of whole person impairment in relation to all body parts listed in the ARD.