Crisafi v St George Smallgooods Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Crisafi v St George Smallgooods Pty Ltd [2022] NSWPIC 613
APPLICANT:	Joseph Crisafi
RESPONDENT:	St George Small Goods Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	4 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; injury to lumbar spine and scarring accepted; liability for thoracic spine is denied; Held – the applicant has the onus of proving he suffered a thoracic spine injury; section 4 of the Workers Compensation Act 1987; including an identifiable pathological change to that body part: Castro v State Transit Authority (NSW) followed; the issue of whether the pathological changes in the applicant’s thoracic spine discovered 11 months post-injury were caused by the event in issue is to be determined by a common sense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates applied; the preponderance of the medical and lay evidence, including but not limited to the radiological findings and the complaint of thoracic spine pain in the days immediately following the incident at issue supports a finding the applicant suffered a thoracic spine injury; matter remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the thoracic spine, lumbar spine and scarring.
determinations made:	1. The applicant suffered an injury to his lumbar spine and thoracic spine together with scarring in the course of his employment with the respondent on 13 April 2017. 2. The applicant's employment with the respondent was a substantial contributing factor to the injuries set out in [1] above. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 13 April 2017. Body systems referred: lumbar spine, thoracic spine, scarring (TEMSKI). Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, save for the report of Dr Maniam dated 13 May 2020 at page 10 which is not to be referred, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

On 13 April 2017, Joseph Crisafi (the applicant) was unloading a delivery in the course of his employment with St George Small Goods Pty Ltd (the respondent) when he slipped and fell approximately 1 m from the back of a refrigerated truck and landed on the metal blade of a trolley.
The applicant alleges he hit his back in the fall and also suffered a serious cut.
The accident took place shortly before the Easter long weekend, and the applicant alleges his symptoms persisted over the break. He states that when he returned to work after Easter, he was unable to cope with his mid to lower back pain and symptoms radiating into his left buttock and leg.
The applicant brings these proceedings seeking payment of permanent impairment compensation for an injury to his lumbar spine, thoracic spine and for associated scarring. The respondent accepts liability for the lumbar spine and scarring; however, it denies the applicant suffered an injury to his thoracic spine in the accident at issue.
The parties agreed that on the applicant’s own case, if there is a finding of no injury to the thoracic spine there will be an award for the respondent in these proceedings, as the applicant's other injuries do not exceed the threshold for permanent impairment compensation.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the applicant suffered injury to his thoracic spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing on 5 October 2022. 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 the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr Hickey of counsel instructed by Mr Caristo appeared for the applicant. Ms Compton of counsel instructed by Ms Porter appeared to the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
At the hearing, the applicant elected not to rely on the report of Dr Maniam dated
13 May 2020, found at page 10 of the annexures to the Application. That report was not read or considered in the making of this determination.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury to his thoracic spine

The applicant alleges he suffered a frank injury to his thoracic spine in the incident at issue. "Injury" is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) as relevantly, a personal injury arising out of or in the course of employment.
The applicant bears the onus of proving that he suffered an injury to his thoracic spine, and it is uncontroversial to say that in order to succeed, he must demonstrate the presence of a sudden or identifiable pathological change in that body part: see Castro v State Transit Authority (NSW) [2000] NSWCC 12.
As Ms Compton noted in the course of her submissions, the issue in this matter is whether some pathological changes to the applicant's thoracic spine which were identified in an MRI scan of 14 March 2018 occurred as a result of the incident at issue. She submitted, quite appropriately in my view, that if those changes are found to have been caused by the injurious event in question, then the applicant will have discharged his onus of proof and the matter will be referred to a Medical Assessor for assessment of the permanent impairment of each of the claimed body systems.
The applicant described the circumstances of his injury as follows:
"5. On 13 April 2017, I was unloading a delivery in the Penrith area. I was carrying a box of potato chips weighing about 15 kg. I was in the back of the refrigerator truck. I was packing out of the freezer unit with a box of chips. I slipped and fell off the back of the truck backwards and my back landed on the metal blade of a trolley. The trolley was on the ground waiting to be loaded with the box of chips…the impact of the blade made a diagonal cut across my low back to the mid back fill. I then fell to the ground. There was some force in the incident as my left buttock struck a heavy drum and my low back struck the metal edge of the blade of the trolley. I then fell to the ground. I felt a sudden jarring to my low back area as it hit the edge of the trolley blade. I felt severe back pain as I fell about a metre from the step of the truck onto the trolley on the ground."
The applicant then described being referred by a supervisor to a doctor used by the respondent, Dr Missiakos, general practitioner (GP) in Padstow. The applicant states he consulted Dr Missiakos and underwent an X-ray to his lumbar spine.
The injury occurred shortly before the 2017 Easter long weekend, and the applicant states Dr Missiakos told him he would be fit to return to work on the Tuesday after the Easter break. According to the applicant:
"7.     Symptoms persisted on the Easter long weekend. I had a complete rest. I attempted to return to work on the Tuesday but I was unable to cope with the duties due to back pain. I also felt numbness and pain going down from my lower back to my left buttocks/thigh and down my left leg. Left buttock and left leg numbness became my main concern though I also had low and mid back pain.
8.     I went back to see Dr Missiakos on 18 April 2017. I complained a left buttock/thigh pain. I had a CT scan to my lower back. Dr Missiakos did not appear to take my pain or injury seriously and advised that I was fit after a few days to return to normal duties. I had no confidence in Dr Missiakos. I did not return to see Dr Missiakos. I saw a physio referred by Dr Missiakos on one occasion but it did not help. On 19 April 2017 I had another health issue. I had a cyst/infection and a lump to my left testicle/scrotum. I sought treatment from my usual GP at Blue Cross Medical Centre (322 Kingsgrove Road, Kingsgrove) for the infection.
9.     When I attended for the infection, I recall complaining to the nurses and doctors at Blue Cross Medical Centre of my work injury. On 28 April 2017, I consulted the GP to take over the treatment for my workers compensation injury and claim. I reported the work incident and told Blue Cross Medical Practice of low back and left leg/buttock numbness together with a painful mid spine."
For the applicant, Mr Hickey submitted the potential seriousness of the applicant's lumbar spine symptoms including radiculopathy meant the focus of treating practitioners was the lumbar spine injury and the potentially serious repercussions of it, as opposed to the thoracic spine pain.
When the applicant attended his regular GP on 24 April 2017, the following entry was recorded:
"Groin wound L side. Abscess previously drained.
Approximately 1 cm deep today. Clean, healing well. No signs of infection. Pain ++.
Cleaned with NS. Packed with Aquacel Rope (he brought in from hospital) trimmed hair and op site in place.
Nil complaint.
History:
HAD A FALL AT WORK 13/4/17.
SLIPPED AND FELL BACKWARDS LANDING ON THE BLADE OF THE TROLLEY.
Examination:
A LONG OBLIQUE SCAR IN LOW BACK.
TENDER LOWER THORACIC SPINE.
ROM RESTRICTED.
CTLS REPORT NO FOCAL DISC PROTRUSION, NO FRACTURE.
HAD PHYSIO.
Management:
CONTINUE PHYSIO" (original capitalisation)
The applicant underwent an MRI of his lumbar spine on 28 May 2017. He then underwent other treatment which was principally concerned with the lumbar spine before undergoing an MRI of the thoracic spine on 14 March 2018. The report of that scan was relevantly as follows:
"Clinical history: neuropathic symptoms following fall.
Technique: sagittal T1, T2, STIR, and axial T2 sequences were performed through the thoracic spine.
Findings:
There is no abnormal signal within the thoracic spinal or cord to the level of the conus. No intrathecal mass lesion. There are normalcy SF flow voids.
There are very tiny disc protrusions at T7/8 and T8/9. No spinal canal narrowing at any level.
No exit foraminal narrowing or visualised exiting nerve root impingement at any level."
Mr Hickey submitted the pathology recorded in the thoracic spine MRI is consistent with the mechanism of injury, and that on a commonsense basis the Commission would find the applicant’s fall at issue was the cause of the small thoracic disc protrusions.
There are a number of clinical entries noting the applicant suffering thoracic spine pain, which were taken between 26 July 2018 and 3 December 2018. I do not propose to recite those entries verbatim in these reasons, however, Ms Compton submitted that the presence of the symptomology and radiological changes in the thoracic spine, could not, on the evidence available, be linked to the injury at issue given the effluxion of time between the injurious event and the recording of thoracic spine symptoms, in that the recording of complaints came many months, if not a year after the fall at issue.
For his part, the applicant submitted that from April 2017, there were complaints of pain in the mid and low back, however, the emphasis was on the lumbar spine rather than the adjacent area of complaint. On balance, I find this a reasonable submission given the complaint of thoracic spine in the week following the injury itself referred to the lower part of that body part, which, it is trite to note, is adjacent to the lumbar spine.
Support for a thoracic spine injury is also found from the applicant's independent medical examiner (IME) Dr Bodel. In his report at page 38 of the Application, Dr Bodel undertook an examination of the applicant and recorded the following:
"He does complain of tenderness at the thoracolumbar junction and there is some guarding in that area. He has a slight restriction of lateral bending and rotation of the thoracic spine, particularly lateral bending to the left."
At the time of his first report, it seems Dr Bodel did not have access to the MRI of the thoracic spine which had been taken on 14 March 2018. Nevertheless, Dr Bodel concluded, "the pathology in the thoracic spine is probably a musculoligamentous injury. I have seen no significant report of structural pathology in the thoracic spine". Dr Bodel assessed a DRE thoracic category II level of assessable impairment and a 5% whole person impairment.
In a supplementary report dated 18 May 2022, Dr Bodel commented on the findings in the thoracic spine MRI. When asked to comment on the significance of the report and whether it could be linked to the injurious event at issue, Dr Bodel said:
"The 'tiny disc protrusions at T7/8 and T8/8 [sic]' are consistent with this gentleman's clinical findings at the time of my assessment. I recorded asymmetry of movement in the thoracic spine which attracted an impairment rating, and that impairment is consistent with that level of pathology."
Dr Bodel also commented on the various GP clinical entries together with those of physiotherapist Mr McComb, which confirm some complaints of pain into the thoracic and lumbar spine, albeit in the latter’s case in 2018. Dr Bodel opined that the tiny disc pathologies are of a type which would lead to some asymmetry of movement as he had noted on examination and maintained his assessment of impairment from his first report.
The respondent attacked the applicant's credit and noted that his statement to the effect of never having back symptoms before the injury at issue was plainly false. I accept this is the case, however, the injury to the applicant's lumbar spine is accepted in any event.
Ms Compton submitted the Commission would not rely on the applicant's statement concerning the onset of his thoracic spine symptoms given the inconsistencies relating to the presence of pre-existing back problems.
The difficulty with that submission is there are objective findings of thoracic spine pathology consistent with the applicant's complaints of post-injury pain. That much is dealt with by
Dr Bodel, and notwithstanding the focus on the lumbar spine issues for the most part until 2018, there can be no question the applicant complained of thoracic spine pain to his GP in the days immediately following the injury at issue.
The respondent relied on the report of Dr Panjratan, IME dated 20 July 2020. In that report, Dr Panjratan referred to the thoracic MRI of 14 March 2018 and the disc protrusions shown in it. On examination, Dr Panjratan indicated the thoracic spine had normal contours, and the applicant did not complain of tenderness on pressure in that area. In dealing with the findings of disc pathology in the thoracic spine, and whether it could be causally related to the fall at issue, Dr Panjratan stated the following:
"In the initial WorkCover NSW certificate of capacity, the diagnosis of injury was limited to 'lower back pain'. There was no reference to thoracic spine symptoms.
On 7 December 2017, Kevin Portley, orthopaedic surgeon (that is incorrect, he is an allied health musculoskeletal specialist but not a surgeon) reported that the worker developed lumbar pain as a result of the work incident. Again, there is no reference to any thoracic symptoms."
Dr Panjratan did not find any assessable impairment to the applicant's thoracic spine; however, he did find injury to the lumbar spine. Dr Panjratan said there was no injury to the thoracic spine at all and that the applicant "has not complained of it basically and I cannot comment on Dr VJ Maniam's reason for including it".
When dealing with questions of causation such as the relevant inquiry in this case in a workers compensation context, the Commission must apply a commonsense test of causation. In the workers compensation context, that test was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:
"The result of the cases is that each case where causation is an issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions approximate caused by the use of the phrase 'results from', is not now accepted. By the same token, the mean proof that certain events occurred which predisposed the worker to subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation." (emphasis added)
In this matter, I am satisfied on a commonsense basis that the applicant has discharged his onus of proof and established a causal link between the injurious event at issue and his thoracic spine pathology.
As already noted, the applicant complained of lower thoracic spine pain only a few days after the injury at issue. True it is the applicant’s lumbar spine treatment overtook considerations relating to his thoracic spine, however, I accept the applicant’s complaints concerning ongoing thoracic spine problems since the injury at issue. There is also no evidence which would suggest anything other than the fall at issue caused the thoracic spine pathology demonstrated in the MRI of March 2018.
The respondent noted that although the applicant made his complaint of low thoracic spine pain to his GP in the immediate aftermath of the fall, no diagnosis of any thoracic condition was made at that time.
This may well be the case; however, the clinical entry nevertheless serves as a contemporaneous complaint of pain in the body part at issue, and when examining the totality of the evidence on a commonsense basis, a contemporaneous complaint of pain so soon after the injurious event in my view carries significant weight in confirming the applicant’s allegation the onset of thoracic spine pain immediately following the injury.
Ms Compton took the Commission to the entry of Mr McComb, physiotherapist dated
20 July 2018. In particular, Ms Compton referred to the shading of the figure on that document which she submitted did not show the thoracic spine as being a source of pain.
With respect, I do not accept that submission, as the shading will inherently be imprecise and the usual caution regarding reliance on clinical entries of treating practitioners must be adhered to. Moreover, the applicant's complaints of thoracic spine pain were in the lower part of that body system, and in my view, it is not clear the shading on the figure in the clinical note excludes any thoracic spine problem.
In any event, there are a significant number of clinical entries from Mr McComb commencing in or about July 2018, some of which are handwritten, and others typed. It is apparent that from at least 3 September 2018 there is a reference to thoracic spine symptoms, and those complaints continue throughout the following typed entries:
17 September 2018, 24 September 2018, 8 October 2018, 15 October 2018,
17 October 2018, 24 October 2018, 26 October 2018, 29 October 2018,
15 November 2018, 16 November 2018, 19 November 2018, 20 November 2018,
26 November 2018, 28 November 2018, 19 November 2018, 20 November 2018,
26 November 2018, 28 November 2018, 3 December 2018, 12 December 2018,
22 January 2019, and 25 January 2019.

On each of those occasions, the entries refer to pain running from the lower thoracic spine into the lumbar region.
Whilst the respondent argues the onset of complaints regarding the thoracic spine were sufficiently late as to constitute a break in the causal chain between injury and symptom, in my view it is apparent the lower thoracic spine symptoms are consistent with both the radiological investigations of March 2018 and also the initial complaint of thoracic and lumbar spine pain in the immediate aftermath of the injury at issue.
On balance, I am satisfied on a commonsense basis that the medical and lay evidence establishes a causal link between the injurious event at issue and the thoracic spine pathology demonstrated in the MRI of March 2018.
I am therefore satisfied on the balance of probabilities that the applicant suffered an injury to his thoracic spine in the course of his employment with the respondent on 13 April 2017 and the Commission will therefore make the findings and orders as set out on page 1 of the Certificate of Determination.

SUMMARY

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

[2022] NSWPIC 613

4 November 2022