Cromb v Roads & Traffic Authority of New South Wales - [2010] NSWWCCPD 75

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Cromb v Roads & Traffic Authority of New South Wales [2010] NSWWCCPD 75
APPELLANT:		Anthony Craig Cromb
RESPONDENT:		Roads & Traffic Authority of New South Wales
INSURER:		Allianz Australia Insurance Ltd
FILE NUMBER:		A1-39/10
ARBITRATOR:	Mr J Ireland
DATE OF ARBITRATOR’S DECISION:		25 March 2010
DATE OF APPEAL DECISION:		14 July 2010
SUBJECT MATTER OF DECISION:		Injury; disease; section 4 of the Workers Compensation Act 1987; causation
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Adams Leyland Lawyers
Respondent:	Thompson Cooper Lawyers
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 25 March 2010 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND

The appellant worker, Anthony Cromb, injured his neck on 17 May 1999 when he fell from the back of a truck in the course of his employment with the respondent employer, Roads & Traffic Authority of New South Wales. The respondent accepted liability and paid compensation.

As a result of his injury, he underwent surgery in February 2001 when his cervical vertebrae at C5/6 were fused. He remained off work for several months, initially returning to light duties in mid-2001 and then full duties in approximately February 2003. He coped with his duties, but occasionally felt pain in his neck, which would resolve after a few days.
Mr Cromb claimed lump sum compensation in the former Compensation Court of New South Wales in 2002. That claim was determined by Burke CCJ on 12 March 2003 when Mr Cromb was awarded the following compensation:
(a)     $7,200 in respect of an 18 per cent permanent impairment of his neck (being a 20 per cent impairment of his neck less a deductable proportion of 10 per cent);
(b)     $5,062.50 in respect of 6.75 per cent permanent loss of use of Mr Cromb’s left arm at or above the elbow (being a 7.5 per cent loss of use of the left arm at or above the elbow less a deductable proportion of 10 per cent);
(c)     $10,800 in respect of a 13.5 per cent permanent loss of use of Mr Cromb’s right arm at or above the elbow (being a 15 per cent loss of use of the right arm at or above the elbow less a deductable proportion of 10 per cent), and
(d)     compensation under section 67 of $15,000 in respect of pain and suffering.

Mr Cromb alleges that, in January 2008, he drove trucks over rough ground and was required to turn and rotate his head continually. He developed severe pain in his neck that radiated into his left arm and hand. He underwent further surgery to his neck on 13 November 2008. On this occasion, the cervical vertebrae at C6/7 were fused.

Mr Cromb submitted a claim for compensation for time off work between 18 June 2008 and 12 January 2009. The insurer accepted liability for that claim and paid weekly compensation at the appropriate statutory rate for total incapacity under section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In letters dated 1 April 2009 and 21 May 2009, Mr Cromb’s Solicitor claimed additional lump sum compensation plus weekly compensation at Mr Cromb’s current weekly wage rate (his award rate) under section 36 of the 1987 Act.
In a letter dated 23 June 2009, the respondent’s workers compensation insurer, Allianz Australia Insurance Limited (‘Allianz’), disputed that Mr Cromb was entitled to weekly compensation at his award rate. It relied on medical evidence that Mr Cromb’s neck symptoms in 2008 had resulted from his May 1999 injury, which caused damage to the C6/7 disc. As he had already been paid weekly compensation at his award rate for the first 26 weeks of his incapacity as a result of that injury, he was only entitled to compensation at the statutory rate under section 36 and not his (much higher) award rate.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 6 January 2010, and amended at the arbitration, Mr Cromb claimed weekly compensation from 18 June 2008 until 12 January 2009 at his award rate under section 36 of the 1987 Act. He also claimed additional lump sum compensation in respect of a further 8.24 per cent permanent loss of efficient use of his left arm at or above the elbow and a further 6.5 per cent permanent loss of efficient use of his right arm at or above the elbow. In the alternative, if his impairment resulted from an additional injury, he claimed lump sum compensation in respect of a 25 per cent whole person impairment as a result of the condition of his cervical spine. He also claimed additional compensation for pain and suffering.
The Application alleged that Mr Cromb injured his neck and arms when he fell from the back of a truck on 17 May 1999 and as a result of the “nature and conditions of [his] employment with [the] respondent including all tasks associated with driving trucks on rough ground” between February 2003 and 18 June 2008, or in the alternative, in January 2008.
The Commission listed the matter for conciliation and arbitration on 2 March 2010. Both parties were legally represented. The Arbitrator heard lengthy submissions, but took no oral evidence. In a reserved decision delivered on 25 March 2010, the Arbitrator rejected the claim that Mr Cromb injured his neck in January 2008 or between February 2003 and 18 June 2008. He referred the assessment of Mr Cromb’s claim for additional lump sum compensation under the Table of Disabilities to the Registrar for referral to an Approved Medical Specialist.
The Commission issued a Certificate of Determination on 25 March 2010 in the following terms:
“The Commission determines:
1.     That there be an award for the Respondent in respect of the Applicant’s claim for a further injury to the cervical spine as a consequence of an injurious event in January 2008 or by virtue of the nature and conditions of the Applicant’s employment with the Respondent between February 2003 and 18 June 2008.
2.     By consent of both parties the Applicant is to be referred to an Approved Medical Specialist to determine the degree if any of any further impairment to the left and right upper extremities and cervical spine as a consequence of the injurious event which occurred on 17 May 1999. The documentation to accompany that referral being the material alluded to at paragraph 6 hereof.
3.      The Respondent to pay the Applicant’s costs as agreed or assessed and in that regard having consideration for the respective parties submissions on complexity I certify an uplift of 15% payable to both parties.”
In an appeal filed on 12 April 2010, Mr Cromb seeks leave to challenge the Arbitrator’s determination that he did not receive a further injury to his neck in early January 2008 or between February 2003 and 18 June 2008.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE EVIDENCE

Mr Cromb

Mr Cromb’s evidence is set out in his statement dated 16 August 2009. He was born in 1961 and is currently 49 years of age. At the time of his 1999 injury, he worked for the respondent as a truck driver. On 17 May 1999 he fell from the back of a truck and injured his neck. He developed pain in his neck and pins and needles and numbness in his right hand. After a prolonged period of conservative treatment, he underwent surgery at the hands of Dr Hillier in February 2001.

He said (incorrectly) that he was “off work until February 2003” when he returned to work on full duties. Those duties included truck driving, shovelling, digging pot holes and fencing.
Between “February 2001 and early 2008”, he coped “OK” with his duties. He occasionally got pain in his neck, but only if he “over did it”. That pain would “always resolve” after two or three days. He said he never sought treatment for the “intermittent pain” in his neck.
In early 2008, Mr Cromb worked at Perryman’s Lane north of Albury. This work required him to drive trucks on rough ground, which caused him to bounce up and down in the cabin. He also had to “keep an eye on what was happening” around him and that involved him “turning/rotating” his head continually. It was at this time that he developed severe pain in his neck that radiated into his left arm. He also developed numbness in his left hand.
Mr Cromb said that he saw Dr Lakshmanan on “7 June 2008” [sic 17 June 2008] and reported the ongoing pain in his neck and the tingling in his fingers and forearms. He said that he explained that his symptoms had “been occurring for the past 6 months” whilst he had been driving trucks at work. The symptoms in his neck and arms had been gradually getting worse and he decided to see Dr Lakshmanan because he had trouble handling the increasing pain. He was referred for specialist attention and underwent surgery on 13 November 2008. He returned to work on 12 January 2009.
Mr Cromb added, at [25] of his statement:
“I now believe that the work I was performing in early 2008 at Perryman’s Lane caused further injury to my neck. I had been able to work up until that time with no major ongoing symptoms in my neck or arms. The pain that I felt in the 2008 period was like that that I had experienced following my initial injury. I had not felt this pain since prior to my initial fusion in February 2001.”
Mr Cromb completed a claim form on 8 December 2009. Under “what happened and how were you injured?”, Mr Cromb recorded:
“Nature & conditions of employment including driving of trucks which caused continual jarring of neck.”

Medical evidence

A cervical MRI scan on 31 July 2000 revealed a generalised posterior bulge of the annulus at C5/6 and a focal left posterolateral protrusion at C6/7. Dr Brooder, consultant neurologist, reported on the same day that the MRI scan demonstrated “degenerative changes and intervertebral disc space narrowing” at the C5/6 and C6/7 levels. He also noted a right-sided C5/6 intervertebral disc protrusion which extended to involve the right C6 nerve root.

Dr Hillier, orthopaedic surgeon, reported on 7 August 2000 that Mr Cromb had a long standing disc prolapse at C5/6 with osteophyte formation and also “quite a large disc prolapse at C6/C7”.

Conservative treatment, including nerve root injections at the C5/6 and C6/7 levels, failed to give long term relief of Mr Cromb’s symptoms and he underwent a fusion of the C5/6 intervertebral bodies in February 2001.

Dr Rowe, specialist occupational physician, examined Mr Cromb for medico-legal purposes on 7 May 2001 and reported to the solicitor on the same day. He took a history of the May 1999 fall and that Mr Cromb developed neck and right arm symptoms as a result of that fall. After his surgery, Mr Cromb returned to work in about April 2001. As at May 2001 Mr Cromb was performing light duties. He was not allowed to drive and could not do any heavy lifting. Dr Rowe concluded that Mr Cromb had suffered an injury to “at least the C5/6 disc” as a result of his fall in 1999 and that the surgery had been successful. He felt that Mr Cromb would eventually be able to return to his usual duties as a driver, but he had been left with a long term impairment in his neck and right arm.

Nancy Robinson, physiotherapist, reported on 25 June 2001 that Mr Cromb had a “very good range of cervical spine movement” and that she was discharging him from further treatment. It was possible that his neck “may have an episode of stiffening up”.

Dr Hillier cleared Mr Cromb to return to normal duties on or about 2 July 2001.
Dr Rowe reviewed Mr Cromb on 27 November 2001. Mr Cromb had no numbness in his right arm or hand, though he felt that his right hand was weaker than his left hand. He was also concerned that his shoulder seemed to be drooping more and he wondered if the C6/7 disc was causing his problems. Mr Cromb had not returned to driving heavy equipment and did no spraying. His duties consisted of being driven about looking for pot holes, recording them and authorising repairs. He continued to have pain in his neck and weakness in his right arm.
Dr Hillier reported on 23 July 2002 that Mr Cromb described a pattern of neck and shoulder pain that raised the possibility that the C6/7 disc had deteriorated. He said that that disc had some changes “from his original injury” but had stood up to the “loading” reasonably well until recently. Dr Hillier arranged for another MRI scan on 13 August 2002. Dr Hillier stated that it did not suggest that the C6/7 disc had deteriorated though there was still some compression from the spinal structures at the C5/6 level.
Dr Brooder reviewed Mr Cromb on 12 August 2002 and reported to his solicitors on 26 January 2003. He recorded that Mr Cromb had undertaken some concreting in the three weeks prior to August 2002 and that he developed increasing and severe pain in his neck and shoulder girdle bilaterally. He was also aware of intermittent numbness and aching involving the whole of his right arm. Dr Brooder felt that the worker was permanently unable to return to his pre-injury employment as an articulated vehicle driver. The long term prognosis remained “somewhat guarded”. He felt that Mr Cromb would remain “subject to a continuing cervical pain syndrome indefinitely”.
Mr Cromb underwent a C6 nerve root block on 17 October 2002.
Dr Hillier reviewed Mr Cromb again in December 2002 with the August 2002 MRI scan. He repeated that the fusion at C5/6 remained stable and that the changes at C6/7 did not “appear to be increasing”, but Mr Cromb “may in time still benefit with decompression of that segment with a laminoplasty procedure”.
Dr Rowe reviewed Mr Cromb on 3 March 2003 and reported on the same day to his solicitors. Mr Cromb complained that his neck pain tended to radiate to his shoulders and arms. He felt that his arms were weak and that his left arm had become weaker. He sometimes got tingling and numbness about the left hand and sometimes the right hand. His grip was reduced in both hands.
Dr Rowe recorded that Mr Cromb had returned to work two months earlier and that he “just drove”. He did no physical work. If he did “anything” his neck would play up. On examination, Dr Rowe noted both Mr Cromb’s shoulders to be drooping and a loss of range of movement of both shoulders. There was some weakness in the left deltoid. There was a loss of grip strength in the left hand compared with six months earlier. Pain in the left arm and shoulder had increased and worsened since Dr Rowe’s previous examination.
On 18 June 2008, Mr Cromb underwent an MSCT scan of his cervical spine which revealed mild spinal canal stenosis at C5/6 and a small left “paracentral disc-osteophyte complex” at the C6/7 level. There was moderate to severe right C7 exit foraminal stenosis.

At the request of Allianz, Dr Leitl, orthopaedic surgeon, examined Mr Cromb on 11 August 2008 and reported on 12 August 2008. He took a history of the 1999 injury and subsequent surgery. He recorded that Mr Cromb initially returned to work on lighter duties, but ultimately resumed truck driving. He managed reasonably well, “but about a year after the neck operation his neck pain flared and he required more time off work”. No further specific treatment was provided and he “largely recovered”, although he always had some persisting neck discomfort thereafter. Mr Cromb said that about six months earlier (February 2008) he noticed that his neck was “becoming sorer and sorer”. There was “no specific incident or accident” that set off his neck again. He also noticed soreness in his left forearm with cramping and intermittent pins and needles and numbness in the tips of his left thumb, index and middle fingers. His symptoms progressed and became more persistent. He eventually saw Dr Lakshmanan who put him off work.
Dr Leitl diagnosed a left C6/7 disc prolapse. He concluded that Mr Cromb’s condition was due to “the gradual deterioration of the previous C6/7 injury”. He added:
“As a result of the original injury of 17 May 1999 Mr Cromb suffered injuries to the C5/6 and C6/7 discs. The C6/7 disc prolapse injury has progressed as a result of the effects of life, work and living resulting in his current condition.”
Mr Cromb’s symptoms were consistent with the “previously demonstrated C6/7 disc prolapse”. He added that the worker’s “current condition” represented the “time associated progress of the previous left C6/7 disc prolapse”. He highlighted the fact that the MRI scan in August 2002 “clearly demonstrated an injury at the C6/7 region”, which was again demonstrated on the more recent CT scan of 18 June 2008. Dr Leitl concluded that the incident of 17 May 1999 was “a direct cause of [Mr Cromb’s] current condition”. He felt that the cervical spondylosis changes referred to in Lakshmanan’s certificate of 17 June 2008 were a result of a “natural time based process in which the incident of 17 May 1999 was a significant factor”.
In response to a question of whether “aggravation of a pre-existing condition [was] an issue”, Dr Leitl replied:
“In my view aggravation has occurred in the sense that the previously identified C6/7 disc prolapse is now responsible for his current condition and has got to this stage by way of gradual process.”
Dr Leitl felt that there had been “permanent aggravation”. Employment with the respondent remained “a substantial contributing factor to his current condition”.

Mr Cromb saw Dr Hillier in September 2008 complaining of significant pain. A further MRI scan on 5 November 2008 revealed a “broad posterolateral and lateral disc protrusion” effacing the lateral recess and extending into the exit foramen of the left C7 nerve root. After examining the MRI scan Dr Hillier reported on 5 November 2008 in the following terms:
“The new MRI scan does show that immediately below the level of his previous anterior disc clearance and fusion, he has developed a new disc injury.
The C6/C7 disc which did have some damage at the time of his original injury, has deteriorated and produced that left sided disc prolapse which is producing some left C7 compromise.”
After discussions with Dr Hillier, Mr Cromb decided to have a fusion of the interverterbral bodies at C6/7. He underwent that procedure on 13 November 2008.
Dr Rowe reviewed Mr Cromb on 22 April 2009 and reported to his solicitor on the same day. He recorded that Mr Cromb underwent further surgery “because of increasing pain in the neck and left arm and weakness about the left hand”. Mr Cromb had returned to work driving a tip truck in January 2009. Mr Cromb’s hands were well worn and calloused, which he said was due to work he performed on cars at his home.

Under “opinion” Dr Rowe stated:
“Since I saw Mr Cromb last, he has continued to have neck pain. He has had a recent second disc replacement and he has more stiffness in the neck and he has radiculopathy in the left arm.
He tried to continue working up to 9 months ago when he said he had to stop because of increasing pain. I think the disc below the first replaced one has gradually deteriorated over time.
His condition is still related to the original injury.”
In a supplementary report dated 26 June 2009, Dr Rowe stated that he did not think Mr Cromb had made a good recovery from his last surgery. He noted that he continued to complain of neck pain, and numbness and weakness in his hands:
“However, in spite of that, the injury initially was in 1999 and it would therefore be reasonable to assess under the Table of Maims, rather than [as] a whole person impairment, although I was specifically asked to assess him under the AMA fifth edition, that is, a whole person impairment was requested.”

Dr Leitl reviewed Mr Cromb on 15 June 2009 and prepared a supplementary report on the same date. He took substantially the same history as set out in his 2008 report, but noted that since that examination Mr Cromb had undergone further surgery in December 2008 [sic November 2008] and had returned to work on normal hours as a tip truck driver. Dr Leitl repeated that the workplace incident of 17 May 1999 was “the major cause of the disc prolapse conditions at C5/6 and C6/7”. Employment was a substantial contributing factor to the development of “the disc prolapses at C5/6 and C6/7”.
After being told that the respondent had no record of any further injuries or aggravations after May 1999, Dr Leitl was asked to provide an assessment under the Table of Maims. He responded:
“There were no further specific injuries following the initial fall in May 1999 but his neck condition could have been expected to deteriorate by way of natural process as well as by a contribution from the activities in his workplace, leading to a deterioration in the previously noted C6/7 disc prolapse injury and ultimately causing the symptoms that occurred in his neck and left arm during the 2008 year and for which the successful surgery of the C6/7 fusion in December 2008 was done.”
Dr Brooder reviewed Mr Cromb on 14 July 2008, 4 August 2008, 13 August 2008 and 4 August 2009. He reported to Mr Cromb’s solicitors on 31 October 2009. He took a history that Mr Cromb developed intermittent numbness and tingling and paraesthesia in his left hand in mid-2007. The intermittent sensory disturbance usually occurred with prolonged truck driving, using vibrating machinery or following certain head and neck movements. Over the subsequent months, the intermittent sensory disturbance in the left hand became progressively more frequent and more severe. He then attended his general practitioner, Dr Lakshmanan, and was prescribed a non-steroidal analgesic and anti-inflammatory medication and referred for a CT scan. In July 2008, Mr Cromb was waking on three or four occasions through the night with sensory disturbance in his left hand. The sensory disturbance was associated with intermittent aching pain and muscle cramping involving the lateral aspect of his left forearm. He remained aware of a constant aching pain in his neck, which was more severe on the left side. Dr Brooder considered that Mr Cromb’s symptoms were “consistent with a left-sided cervical radiculopathy (nerve root entrapment) which was related to his previous C5/6 intervertebral disc disease and surgery”.
In the weeks between July and August 2008, Mr Cromb’s symptoms deteriorated and, at times, his forearm pain and sensory disturbance in his left hand were present “relatively constantly”. Mr Cromb underwent a CT guided left C6 neural exit foramen injection on 11 August 2008. Although there was initial improvement in the left forearm pain, the symptoms returned the following day. Dr Brooder felt that the persistent symptoms were related to his C5/6 level on the left side. He felt it was appropriate for him to be reviewed by Dr Hillier. That review took place and Dr Hillier recommended and performed a fusion of the C6/7 intervertebral bodies. After surgery, there was a marked improvement in Mr Cromb’s pain, but his symptoms did not resolve completely.
Under “relevant past clinical history”, Dr Brooder recorded that Mr Cromb had undertaken concreting in late July 2002 and had developed increasing and severe aching in his neck and into his shoulder girdle bilaterally. His arms, especially his right arm, felt generally weak. The worker returned to his previous full time employment on 11 February 2003. His employment after that date involved truck and tip truck driving and general maintenance including digging and shovelling.
Dr Brooder was asked whether he believed Mr Cromb had suffered a further injury and, if so, whether work was a substantial contributing factor to that further injury. Dr Brooder responded:
“I would consider that Mr Cromb has suffered a further injury.
Mr Cromb’s initial cervical spine injury sustained on 17 May 1999 had involved his cervical spine at the C5/6 and was associated with a right-sided intervertebral disc protrusion and entrapment of the right C6 nerve root.
Whereas, Mr Cromb’s most recent injury involved his cervical spine at the C6/7 level associated with a left-sided intervertebral disc protrusion and entrapment of the left C6 nerve root.
I would consider that Mr Cromb’s work was a substantial contributing factor to his further cervical spine injury.” (emphasis included in original)

Medical certificates

Dr Hillier certified Mr Cromb unfit for work from 23 July 2002 until 23 August 2002 because of an “aggravated C6-C7 injury”. He again certified him unfit from 19 October 2002 to 19 November 2002 because of a “C5-C7 cervical disc injury”. Neither certificate described how the injury occurred, but the first certificate gave a date of injury of June 1999.
In a certificate dated 17 June 2009, Dr Lakshmanan certified Mr Cromb unfit from 18 June 2008. Under “how the injury occurred”, Dr Lakshmanan recorded “occurrence from last injury – neck injury 1999”. Under “diagnosis”, he wrote:
“? Cervical spondylosis due to a previous injury”
In answer to the question whether Mr Cromb’s employment was a substantial contributing factor to his injury, Dr Lakshmanan ticked “unknown”.
Dr Hillier certified Mr Cromb unfit for work in a certificate dated 12 September 2008. Under “how the injury occurred”, Dr Hillier recorded “work duties. Original fall June 1999”. He ticked “yes” to the statement that the worker’s employment was a substantial contributing factor to the injury.

Clinical records

Dr Hillier’s clinical notes recorded on 11 February 2003 that Mr Cromb was “doing quite nicely” and coping with his return to work. He did not see Mr Cromb again until 12 September 2008 when he recorded that he was troubled with a left C6 pattern of pain.
Dr Hillier recorded on 5 November 2008, that an MRI scan confirmed “new C6/7 disc prolapse with (L) [indecipherable] compromise”. Treatment options were discussed and Mr Cromb indicated he was prepared to undergo further surgery.
Dr Lakshmanan’s clinical notes are also in evidence. Those notes deal with the 1999 injury and subsequent referral to Dr Hillier. Dr Lakshmanan again referred the worker to Dr Hillier because of neck symptoms in July 2002.
Dr Lakshmanan saw the worker for unrelated matters between 2004 and 2008. On 17 June 2008 Dr Lakshmanan recorded a complaint of tingling in the left fingers and forearm. He subsequently referred Mr Cromb for specialist treatment. Whilst the notes are difficult to decipher, there does not appear to be any reference to any particular incident or event that may have caused the symptoms complained of in June 2008.

THE ARBITRATOR’S REASONS

The Arbitrator recorded that the parties agreed that the following issues remain in dispute:
“1. Whether the Applicant suffered an injury arising out of or in the course of his employment with the Respondent within the meaning of Section 4 of the Workers Compensation Act 1987 in January 2008. If so:
a)Did this injury result in the incapacity for work from 18 June 2008 to 17 December 2008.
b)Did this injury result in permanent impairment.
2. In the alternative whether the Applicant suffered an injury within the meaning of Section 4 of the Workers Compensation Act 1987 due to the nature and conditions of the Applicant’s employment with the Respondent between February 2003 and 18 June 2008. If so:
a)Did this injury result in the incapacity for work from 18 June 2008 to 17 December 2008.
b)Did this injury result in permanent impairment.
3.       Was the incapacity from 18 June 2008 to 17 December 2008 a result of the Applicant’s injury on 17 May 1999.
4.       Does any current impairment result from the Applicant’s injury on 17 May 1999.
5.       The entitlement, if any, to additional weekly benefits from 18 June 2008 to 17 December 2008 and the amount of such entitlement.
6.       The entitlement to lump sums claimed under Section 66 of the 1987 Act, and the amount of any such entitlement.
7.       Section 9A of the 1987 Act in relation to the alleged incident in January 2008 and/or the nature and conditions of employment from February 2003 to 18 June 2008.”
After reviewing the evidence and the party’s submissions the Arbitrator concluded at [25] of his decision:
“I am satisfied on balance that whilst the Applicant’s employment may well have contributed, as it clearly did, in the form of intermittent episodes of pain with symptoms which would subside after two or three days, the fact remains that the primary causative factor for the continuing nature of these symptoms has as its catalyst the injury to the C6/7 disc as a consequence of the initial frank injury of 17 May 1999. As in the case of ‘Lyons’ the pathology or symptoms in this case arose from the injurious event of 17 May 1999 and were not a result of a disease process.”
He then made an award in favour of the respondent in respect of the worker’s claim to have received a further injury to his cervical spine as a result of an alleged injury in January 2008 or as a result of the nature and conditions of his employment between February 2003 and 18 June 2008.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in failing to consider “the correct test for compensation” and in failing to “apply the law to the evidence correctly”.

SUBMISSIONS, DISCUSSION AND FINDINGS

The submissions filed on behalf of Mr Cromb may be summarised as follows:
(a)     the Arbitrator’s finding at [25] of his decision did not correctly address the evidence, issues or law;
(b)     Mr Cromb’s symptoms in 2007 and 2008 were consistent with the change in the pathology of the C6/7 disc “observed on MRI”;
(c)     leaving aside Dr Brooder’s history (of symptoms in the left hand developing in 2007), it was consistently observed that Mr Cromb developed different, more significant and continuing symptoms that could not be described as “intermittent episodes of pain”;
(d)     the Arbitrator erred in using the expression “primary causative factor”, a term not used in the legislation;
(e)     Dr Brooder considered that there had been a “further injury” and, consistent with common sense, that the employment had been a substantial contributing factor to that injury. Dr Leitl considered that there had been a deterioration of the C6/7 disc prolapse injury, and
(f)   Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (‘Lyons’) could be distinguished on two grounds. First, Mr Cromb experienced different symptoms from different pathology, not a worsening of the same symptoms from the same pathology, as Mr Lyons experienced. Second, Neilson CCJ found there had been no aggravation or exacerbation of Mr Lyons’ injury in the subsequent employment. This was an issue not specifically addressed by the Arbitrator.

Whilst I agree that the Arbitrator may have directed himself to the wrong issue when he said that the “primary causative factor” for the continuing nature of Mr Cromb’s symptoms was the 1999 injury, for the reasons set out below, I have reached the same conclusion as that reached by the Arbitrator.
To succeed, Mr Cromb had to establish that he received a further injury and that his employment was a substantial contributing factor to that injury. The injury was either a personal injury (section 4(a) of the 1987 Act), or an aggravation, exacerbation or acceleration of a disease (an aggravation injury (section 4(b)(ii) of the 1987 Act)). For the reasons set out below, he has failed to establish either.

Mr Cromb’s case rests mainly, but not wholly, on his assertion that his work at Perryman’s Lane in early 2008 required him to drive over rough ground, which caused him to bounce up and down in the cabin. He said he had to continually turn his head. He added that, at that time, he developed severe pain in his neck, into his left arm and numbness in his left hand. Not one medical practitioner, whether qualified or treating, took that history, or anything like it.
Though he has also alleged that he received an injury as a result of the “nature and conditions of his employment” between February 2003 and 18 June 2008, there is no persuasive evidence of what it was about those duties that allegedly caused an injury, whether that injury was a personal injury or an aggravation injury.
The first doctor Mr Cromb saw about his neck in 2008 was his general practitioner, Dr Lakshmanan. There is no reference in the doctor’s 2008 notes to Mr Cromb’s symptoms having resulted from any work activities. They made no reference to work at all. His certificate of 17 June 2008 referred to “occurrence from last injury – neck injury 1999”. The absence of any reference by Dr Lakshmanan to Mr Cromb’s work activities in 2008 (or his work between 2003 and 2008) is significant, as it raises a real doubt about whether Mr Cromb’s work activities were as he alleged and whether he received an injury.
Mr Cromb has not suggested that he told Dr Lakshmanan about his work at Perryman’s Lane and that the doctor failed to record it. His evidence was that he explained to Dr Lakshmanan that his symptoms had been occurring for the past six months while he had been driving trucks at work. In the absence of a report from Dr Lakshmanan setting out the history he took from Mr Cromb and explaining the connection between his symptoms and his pathology, Dr Lakshmanan’s certificates do not advance Mr Cromb’s case. They clearly refer to Mr Cromb’s problem as being due to “previous trauma”. The only previous trauma was the 1999 injury. Dr Lakshmanan’s evidence strongly suggests that Mr Cromb did not receive a further injury in either January 2008 or as a result of his duties between 2003 and 2008.
It was correctly submitted by Mr Cromb that the change in his symptoms in 2008 was consistent with the change in pathology of the C6/7 disc observed on MRI. However, that submission failed to deal with the critical issue in the case, namely, the cause of that change in pathology. Mr Cromb’s assertion that the change was caused by his duties at Perryman’s Lane is simply not supported by any persuasive medical evidence because no doctor took that history, or any similar history. The first (and only) mention of driving on rough ground and having to turn his head continually appeared in Mr Cromb’s statement of 16 August 2009.
Dr Brooder’s assertion that Mr Cromb suffered a “further injury” was a conclusion that was not supported by his history or any analysis. His history that the left hand symptoms developed in mid-2007 was inconsistent with Mr Cromb’s evidence, and was clearly incorrect, though not decisive. He added that the intermittent sensory disturbance usually occurred “with prolonged truck driving, using vibrating machinery and following certain head and neck movements”. There is no evidence that Mr Cromb used vibrating machinery in the course of his employment or that his duties between February 2003 and 18 June 2008 required “prolonged truck driving”. It is not known how much time Mr Cromb spent driving and how much time he spent on other duties, such as maintenance. Mr Cromb’s statement did not refer to prolonged driving as being the cause of his symptoms, but to driving on rough ground at Perryman’s Lane and having to turn his head. Dr Brooder took no history that Mr Cromb drove on rough ground or turned his head continually.
Assuming that Dr Brooder’s reference to a further injury was a reference to the deterioration of the C6/7 disc, namely, a change in pathology, he did not identify the “recent injury” or injurious event that caused that change. Though he said that Mr Cromb’s work was a substantial contributing factor to the “further injury” he did not identify what it was about that work that caused the injury. Given the significant discrepancy between Mr Cromb’s evidence and Dr Brooder’s history, and given Dr Brooder’s failure to properly explain the cause of the change in pathology at the C6/7 disc, I have not found his conclusions persuasive.
Dr Brooder’s January 2003 report is instructive, as it highlights the significant deficiencies in the worker’s evidence. It was noted in that report that Mr Cromb had an increase in symptoms in July 2002 following “a period of increased physical activity whilst concreting”. Dr Brooder took no similar history as to the cause of Mr Cromb’s symptoms in 2008.
Dr Rowe’s evidence is unsupportive of Mr Cromb’s case. He had no history of Mr Cromb having driven on rough ground or of him having to continually turn his head. He merely recorded that Mr Cromb stopped work nine months earlier because of increasing pain. With no suggestion of any further work injury having occurred, Dr Rowe concluded that the C6/7 disc had “gradually deteriorated over time”. He added that Mr Cromb’s condition was “still related to the original injury”, that is, the 1999 injury.
Dr Leitl’s history and conclusions are similar to those expressed by Dr Rowe. Dr Leitl had no history of Mr Cromb having driven over rough ground or of him having to continually turn his head. He recorded that there had been no “specific incident or accident” that set off Mr Cromb’s symptoms. Consistent with Dr Brooder’s history of an increase in symptoms after concreting in 2002, Dr Leitl recorded an increase in symptoms about one year after the first operation.
Mr Cromb relied on Dr Leitl’s statement that the C6/7 disc prolapse progressed as a result of the effects of “life, work and living”. Whilst that statement suggested that employment was a factor in the deterioration of the C6/7 disc, Dr Leitl’s ultimate conclusion was that the 1999 injury was a “direct cause” of Mr Cromb’s “current condition”. This conclusion did not rule out the possibility that there may also have been other relevant causes. However, in determining the weight to be attached to those other causes, I have had regard to Dr Leitl’s history that Mr Cromb developed further symptoms without any further specific incident. Therefore, if, contrary to my conclusion, Mr Cromb did receive an injury (whether a personal injury or an aggravation injury) in January 2008, or between February 2003 and 18 June 2008, I do not accept that his employment was a substantial contributing factor to such injury.
I have considered Dr Leitl’s evidence that Mr Cromb suffered a “permanent aggravation”. However, in the absence of a history of the events alleged to have caused the increase in Mr Cromb’s symptoms in 2008, and given the history of the 1999 injury and its significant consequences, the evidence has not established that the aggravation Dr Leitl referred to was caused by Mr Cromb’s work in January 2008, or between February 2003 and 18 June 2008. This is confirmed by Dr Leitl’s conclusion in his June 2009 report that the 1999 injury was “the major cause of the disc prolapse conditions at C5/6 and C6/7” and his statement that Mr Cromb’s “neck condition could have been expected to deteriorate by way of natural process” leading to deterioration in the previously noted C6/7 disc prolapse. That Mr Cromb’s work was a part of that natural process did not make work a substantial contributing factor to any further injury.

That Mr Cromb’s neck deteriorated as part of a natural process following the effects of the 1999 injury is consistent with Dr Brooder’s conclusion in his 2003 report that Mr Cromb’s long-term prognosis was guarded and that he would remain subject to a continuing cervical pain syndrome indefinitely.
It follows that I am not satisfied that Mr Cromb received a personal injury or an aggravation injury in January 2008, or between February 2003 and 18 June 2008, or, if he did receive such an injury, that his employment was a substantial contributing factor to it. The weight of the evidence comfortably establishes that Mr Cromb’s neck condition in 2008 resulted from his serious injury in 1999.

CONCLUSION

Having conducted a review on the merits, I have concluded that Mr Cromb did not suffer a personal injury or an aggravation injury in either January 2008, or as a result of the circumstances of his employment between February 2003 and 18 June 2008. It follows that the Arbitrator’s determination is confirmed.

DECISION

For the reasons given in this decision, the Arbitrator’s determination of 25 March 2010 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche
Acting President

14 July 2010

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE