Drakoulis v CASS Gumnut Early Learning Centre - Campsie
[2025] NSWPIC 12
•13 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Drakoulis v CASS Gumnut Early Learning Centre - Campsie [2025] NSWPIC 12 |
| APPLICANT: | Niki Drakoulis |
| RESPONDENT: | CASS Gumnut Early Learning Centre - Campsie |
| MEMBER: | Michael Moore |
| DATE OF DECISION: | 13 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for further lump sum compensation pursuant to section 66 in respect of an injury received on 2 June 2000; also application for assessment of whole person impairment for the purposes of section 39; only one prior claim for lump sum compensation in 2003 which had resolved by way of a section 66A agreement; need to determine parts of body that had been injured in course of employment and whether claimed consequential conditions resulted from those injuries; matter decided on basis of evidence with no issues of principle; Held – matter referred to Medical Assessor. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury on 2 June 2000 arising out of and in the course of her employment with the respondent within the meaning of s 4(a) of the Workers Compensation Act 1987 being a single event acting on and aggravating a degenerative cervical and lumbar spine. 2. The injury to the applicant’s cervical and lumbar spine on 2 June 2000 has given rise to referred pain affecting her right and left arms or upper limbs and her right and left legs or lower limbs. 3. The applicant also suffered injury on 2 June 2000 arising out of and in the course of her employment on 2 June 2000 with respondent within the meaning of s 4(a) of the Workers Compensation Act 1987 being soft tissue injuries in the nature of strains or sprains to the applicant’s left groin, left hip, left knee and right shoulder. 4. The applicant also suffered an injury within the meaning of s 4(b)(i) and (ii) of the Workers Compensation Act 1987 caused by both the nature and conditions of her employment and the event of 2 June 2000 in the nature of right epicondylitis affecting the right arm with a deemed date of injury of 2 June 2000 being the date of incapacity. 5. The applicant suffered a consequential condition caused by her injuries on 2 June 2000 being a left epicondylitis affecting her left arm. 6. The applicant did not suffer any separate injury to or consequential condition affecting her wrists and fingers other than from referred symptoms stemming from her cervical injury. 7. The applicant’s fall on 24 August 2017 and resulting fractures to both lower limbs was not a consequence of or caused by any injury sustained by the applicant in course of or arising out of her employment with the respondent or any consequential condition resulting from any such injury. 8. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of Injury: 2 June 2000 (also deemed date of injury for right epicondylitis injury). Body Systems/Parts: neck, back, right arm at or above the elbow, left arm at or above the elbow, right leg at or above the knee, left leg at or above the knee. The assessments of loss of the right leg and loss of the left leg are to exclude any loss or losses arising from the injury sustained by the applicant in a fall on Method of Assessment: Table of Disabilities. 9. I also remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for an assessment of whole person impairment for the purposes of s 39 of the Workers Compensation Act 1987 as follows: Date of Injury: 2 June 2000 (also deemed date of injury for right epicondylitis injury). Body systems/Parts: neck (cervical spine), right upper extremity(including right shoulder, elbow and referred symptoms from cervical spine), left upper extremity (elbow and referred symptoms from cervical spine), back(lumbar spine), right lower extremity or leg (referred symptoms from lumbar spine), left lower extremity or leg (referred symptoms from lumbar spine, left groin, left hip and left knee). The assessment of the right leg and left leg are to exclude any impairments or losses arising from any injury sustained by the applicant in a fall on Method of Assessment: whole person impairment. 10. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) respondent’s Reply and attached documents; (c) respondent’s Application to Admit Late Documents dated 9 October 2024, and (d) a copy of this Certificate of Determination and attached reasons. 11. Any certificate of determination that is issued following the medical assessments of the applicant is to take into account the terms of the s 66A agreement dated 14 April 2003. 12. Given the complexity of the terms of the referral of the applicant to a Medical Assessor either party is to have liberty to apply to the Commission for further orders in relation to those referrals with such liberty to be exercised within 14 days of the date of these orders. |
STATEMENT OF REASONS
BACKGROUND
The applicant is a 72 year old woman who is claiming lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) from the respondent in respect of alleged impairments to, or losses of use of, the neck, back, right arm at or above the elbow, the left arm at or above the elbow, the right leg at or above the knee and the left leg at or above the knee.
The applicant was employed by the respondent as a childcare assistant having commenced work with that employer in 1993.
The applicant suffered injury in the course of her employment on 2 June 2000 when she was attempting to move a bookshelf at her place of employment.
The Employee’s Compensation Claim form dated 7 June 2000 submitted by the applicant following that incident identified the applicant as having suffered a strained and twisted right arm, a sore left knee and pulled muscles down the left side of her body.
The respondent’s report of injury dated 15 June 2000 recorded the applicant as having suffered a strained right arm, back and legs and falling on her left knee.
The applicant apparently ceased work following her injury on 2 June 2000 and did not return to work after that time.
Relevantly the applicant apparently had prior to the incident on 2 June 2000 made a complaint of injury to the right arm in February 1999 as an alleged consequence of her lifting duties at work and had been on lighter duties between 1999 and the incident on
2 June 2000.It appears that the applicant received payments of weekly compensation and payments of medical and treatment expenses.
The applicant subsequently sought lump sum compensation for the impairments and losses of use resulting from the injuries sustained on 2 June 2000 and also resulting from the nature and conditions of her employment with the respondent between 1998 and the date of the claim.
On 14 April 2003 the applicant entered into a complying agreement under s 66A of the 1987 Act whereby she was compensated for 5% loss of use of the left leg at or above the knee, 12% loss of efficient use of the right arm at or above the elbow, 12% loss of efficient use of the left arm at or above the elbow and 10% permanent impairment of the neck.
It is important to note that the settlement did not involve a determination of the nature of the injuries causing the agreed impairments or losses of use.
On 24 August 2017 the applicant suffered a fall where she sustained fractures to her left tibia and fibula and fractures to her right ankle.
Payment of weekly compensation to the applicant came to an end in December 2017 on the basis that the applicant had not been assessed as suffering a whole person impairment of greater than 20%.
Payment of the applicant’s medical and related treatment expenses came to an end on
25 December 2022 being a date five years after cessation of payments of weekly compensation.The applicant claims to have suffered ongoing problems as a consequence of the injuries received in the course of her employment with the respondent.
By letter dated 20 March 2024 the applicant’s solicitor forwarded a letter of demand to the respondent seeking further lump sum compensation pursuant to s 66 of the 1987 Act on the basis that the applicant suffers the following losses of use or impairments:
(a) 20% permanent impairment of the neck;
(b) 20% permanent impairment of the back;
(c) 10% loss of use of the right arm at or above the elbow;
(d) 20% loss of use of the left arm at or above the elbow;
(e) 20% loss of use of the right leg at or above the knee, and
(f) 20% loss of use of the left leg at or above the knee.
A total amount of $73,000 was claimed to be payable to the applicant.
I note that the letter of demand of 20 March 2024 made no allowance for the payments that had been made to the applicant by the respondent pursuant to the s 66A agreement in 2003.
The letter of demand of 20 March 2024 also sought reinstatement of weekly compensation and payment of medical and treatment expenses on the basis that the applicant suffered from a whole person impairment of 26% and accordingly was a worker with high needs pursuant to s 32 of the 1987 Act.
The applicant relied upon the opinions of Dr James Bodel as set out in his medical report dated 7 February 2024 as the basis for the demands noted at points 14,15, and 17 above.
In response to the letter of demand of 20 March 2024 the respondent’s insurer arranged an IME examination of the applicant with Dr Richard Powell (who had previously examined the applicant on 16 March 2017).
Dr Powell’s medical report dated 22 July 2024 was prepared following an examination that occurred on 18 April 2024.
In his report dated 22 July 2024 Dr Powell assessed the applicant as suffering from the following impairments or losses of use as a consequence of her work related injuries:
(a) 20% permanent impairment of the neck;
(b) 15% loss of use of the left arm at or above the elbow;
(c) 12% loss of use of the right arm at or above the elbow;
(d) 15% permanent impairment of the back;
(e) 10% loss of use of the left leg at or above the knee, and
(f) 5% loss of use of the right leg at or above the knee.
The assessments of Drs Bodel and Powell were similar except in relation to the assessment of use of each lower limb or leg with Dr Powell excluding from his assessment the effects of a fall and resultant leg fractures in 2017.
Dr Powell assessed the applicant’s whole person impairment to be 12% whole person impairment.
Following receipt of Dr Powell’s assessment the respondent made an offer to settle the applicant’s claims under s 66 of the 1987 Act on the basis of the following impairments and losses of use:
(a) 10% further permanent impairment of the neck;
(b) 20% permanent impairment of the back;
(c) 3% further permanent loss of use of the left arm at or above the elbow;
(d) 5% permanent loss of use of the right leg at or above the knee, and
(e) 5% further permanent loss of use of the left leg at or above the knee.
A notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 30 July 2024 (the s 78 notice) was also issued disputing secondary injuries to the legs and shoulders but accepting liability for injury to the applicant’s back and neck. The respondent also disputed that the applicant suffered from a whole person impairment of 26% as assessed by Dr Bodel and relied upon the assessment of 12% whole person impairment as assessed by Dr Powell.
Prior to the offer of settlement referred to in point 24 being made and prior to the issue of the s 78 notice the applicant commenced proceedings on 25 July 2024 in the Personal Injury Commission (Commission) bearing matter number W24202/24 seeking payment of lump sum compensation.
On 26 July 2024 the applicant commenced proceedings in the Commission bearing matter number W24247/24 seeking a medical assessment as to whether the applicant suffers from a whole person impairment of greater than 20%.
On 29 July 2024 both sets of proceedings were consolidated into Matter Number W24202/24 which was the first set of proceedings commenced by the applicant and are the proceedings before me.
The matter was the subject of two teleconferences before Division Head Capel on
26 August 2024 and 8 October 2024 and the matter was referred to me to determine as
Mr Capel would shortly be going on leave.The matter came before me for a conciliation/arbitration hearing on 21 October 2024 where Mr Greg Horan of counsel instructed by Ms Kaylee Batiste of Turner Freeman Lawyers appeared for the applicant and Ms Nicole Compton of counsel instructed by Richard Orr of Turks Legal appeared for the respondent.
While the matter appeared to have very good prospects for resolution after protracted discussions it failed to resolve and given time constraints the parties were directed to file written submissions.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the nature of the injury/injuries sustained by the applicant arising out of or in the course of her employment on or preceding 2 June 2000;
(b) whether the applicant suffers from any consequential condition/s resulting from any injury sustained on and/or preceding 2 June 2000 and the nature of any such condition and the part/s of the body affected by same;
(c) in particular whether the applicant’s fall in 2017 when she suffered fractures to her left and right lower limbs was a consequential condition arising from the injuries sustained on 2 June 2000;
(d) the extent of any permanent impairment or loss or use of any part of the body arising as a consequence of any injury/injuries received on 2 June 2000 or any consequential condition resulting from any such injury/injuries, and
(e) the extent of the applicant’s whole person impairment.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (Application);
(b) respondent’s Reply and attached documents (Reply), and
(c) Respondent’s Application to Admit Late Documents dated 9 October 2024 (AALD1).
Oral evidence
No oral evidence was given at the conciliation/arbitration hearing.
FINDINGS AND REASONS
As noted at point 33 the parties were directed to file written submissions given the lateness of the time on the hearing date.
The applicant’s written submissions (AWS) are dated 18 November 2024 and were prepared by Mr Horan of counsel.
The respondent’s written submissions (RWS) are dated 2 December 2024 and were (for reasons that are not given) prepared by Mr Orr solicitor rather than Ms Compton of counsel.
The applicant declined the opportunity to provide any reply to the RWS despite the timetable in the directions issued following the conciliation/arbitration hearing providing the applicant an opportunity to do so.
Given that the submissions of each party form part of the Commission’s file I do not propose to provide a detailed summary of same but will refer where necessary to same.
I note that I have carefully read and considered the submissions of each party.
The thrust of Mr Horan’s submissions is to the effect that the applicant suffered injuries to her neck, back, right and left arms and right and left legs as a result of the fall at work on
2 June 2000 and the nature and conditions of employment, that the applicant also suffered a consequential condition as a result of overuse of the left arm following the fall on
2 June 2000 and that the applicant had suffered a series of falls which were also consequential to the injuries received on 2 June 2000 including in particular the fall on
24 August 2017.Mr Orr’s submissions were essentially to the effect that the evidence established that the fall on 24 August 2017 was not a consequence of any injury received on 2 June 2000 or any consequential condition resulting from any such injury.
Unfortunately Mr Orr’s submissions did not traverse an important issue namely the difference in diagnoses in the medical cases of each party as raised in the s 78 notice and as traversed to some extent by the submissions of Mr Horan given the need to identify the nature of the injuries sustained by the applicant or any consequential condition resulting therefrom before the applicant can be referred for assessment by a medical assessor.
For completeness I note that as the applicant sustained injury on 2 June 2000 any entitlement to lump sum compensation under s 66 of the 1987 Act is assessed by way of reference to the Table of Disabilities as it appeared in the 1987 Act at that time.
I also note for completeness that the applicant has apparently only made one prior claim for lump sum compensation in 2003 and accordingly is entitled to bring one further claim for lump sum compensation for any increased impairments or losses of use.
Medical evidence
The applicant’s medical case relies upon the qualified medical opinion of Dr James Bodel as set out in his report dated 7 February 2024, three medical reports from the applicant’s treating orthopaedic surgeon Dr John Bentivoglio dated 11 November 2003 and
16 May 2006; what is described as a response to a questionnaire by the applicant’s treating general practitioner Dr Dhanapalan dated 19 March 2009; two medical reports of Dhanapalan dated 9 June 2009 and 10 July 2012 ; four referrals prepared by Dr Dhanapalan referring the applicant for physiotherapy treatment dated 3 October 2018, 16 July 2019,
28 October 2019 and 25 August 2020; a medical report by Dr Richard Boyle treating orthopaedic surgeon dated 26 February 2019 addressed to Dr Dhanapalan; a series of reports and requests prepared by Ms Kristiane Heidrich physiotherapist dated 12 April 2012, 12 December 2019, 2 June 2018, 25 May 2020 and 25 August 2020; clinical notes produced by Ms Heidrich; clinical notes produced by Mr Tram Chau physiotherapist and; clinical notes produced by Dhanapalan (which include copies of some reports from treating specialists following referral of the applicant by Dr Dhanapalan for treatment of various medical problems).I note that the period of time covered by the medical evidence is almost one quarter of a century and that there is an absence of contemporaneous medical evidence for much of that period despite what has been included in the applicant’s medical case in the form or records from treating practitioners.
Dr Bodel’s report of 7 February 2024[1] actually consists of a primary medical report and a supplementary report which forms the basis of the applicant’s claim for further compensation and of a whole person impairment of greater than 20% whole person impairment.
[1] Application pp 29-39.
In his report Dr Bodel recorded under the heading “Occupational History” the following:
“The claimant states that she was employed as a childcare worker for Campsie Childcare Centre. She commenced work there in 1998. She initially work casually then full-time as a childcare assistant from 1993 until 2000.
She reports that she has not worked since the injury that occurred at work on 02 June 2000. She received weekly benefits until she was about 60 years of age.
The claimant reports that in the first years of her work she worked in the Babies Room. This involved a lot of heavy lifting, changing nappies and other heavy tasks with children under the age of two and a half years.
The insurer accepted the injuries to the lumbar spine and cervical spine for the accident on 2 June 2000. She received payment for medical expenses and two lump sum payments for Permanent Impairment and Pain and Suffering. Her entitlement for medical and treatment expenses for this claim expired on 25 December 2022.
The claimant reports that compensation is being sought for a “collapsing, weak left knee” incident on 25 August 2017 and resulted in further injury, which required surgery. These injuries occurred as a result of previous injuries sustained from the 02 June 2000 work injury.”[2]
[2] Application p 30.
Dr Bodel further recorded under the heading “History Relating to the Injury” the following:
“Niki Drakoulis states that she first became aware of arm pain associated with the nature and conditions of her work when working in the infants’ section of the childcare facility. Because of her injuries, she was transferred into the toddler’s(sic) room where there was less lifting involved. Her arm pain improved but never completely resolved.
The claimant reports that she recalls her right arm being strained from lifting children in the nursery from January 1989 to February 1999. In March 2000 she strained her right elbow while cooking.
She reports she suffered a more significant frank injury that occurred in the workplace on 02 June 2000. She was attempting to move a bookshelf when it overbalanced, straining her right arm. She was knocked to the ground landing heavily on her left-hand side and struck her left knee when she fell. She felt pain in her neck, back, right arm, left shoulder and left knee. Co-workers came to her assistance. She could not continue the day’s work and the matter was reported and a Workers Compensation Claim was lodged.
The claimant reports she saw her general practitioner, who treated he(sic) conservatively with rest, analgesic medication, physiotherapy and use of a Tens machine. X-rays were taken but no fractures were identified. The insurer accepted the injury to the lumbar and cervical spine.
She states that she continued to have neck pain, shoulder pain and upper arm pain. She also had lower back pain and left knee and leg pain. She sought treatment from Dr Dhanapalan, general practitioner, who at that time mainly focused on the disc pathology in the lumbo-sacral spine at L4/5 and L5/S1 and the degenerative disc disease in the cervical spine. She was treated conservatively with rest and analgesic medication and that helped.
She reports that she was also examined by Dr Bentivoglio on 11 November 2003. He confirmed that she had neurogenic pain in the arms associated with disc pathology of the cervical spine. A CT scan arranged in May 2006 showed evidence of degenerative disc disease at multiple levels.
She states that she continued to have physiotherapy and this was paid for by the insurer however GIO stopped funding in December 2022. She then self-funded those treatments.
The claimant states that she had several episodes of ‘collapsing legs’. In 2009 she had a fall on the footpath as a result of her work related back and leg symptoms caused from the injury on 02 June 2000. She suffered a bilateral hip injury and aggravated her previous back injury. She reports that she returned to Dr Dhanapalan, general practitioner, who indicated that she was unfit for work.
The claimant reports that she had a further episode of injury on 25 August 2017, which occurred at home due to her ‘leg collapsing’. She was in the backyard, her left (sic) gave way and she fell awkwardly suffering a fracture of the tibia and fibula and also an injury to the right leg.
She states that she was taken by ambulance to The Royal Prince Alfred Hospital where she was admitted under the care of Dr Boyle, orthopaedic surgeon. She was an inpatient in the hospital for two weeks and during that time, she had an open reduction and internal fixation of the fractures of the tibia and fibula on the left-hand side. She was then transferred to the Sydney Private Hospital for rehabilitation for another 10 weeks.
She reports that she slowly mobilised in a plaster cast and then in a moon boot. She recalls that she was able to return home on a walking frame. She progressed to a walking stick and eventually was able to ambulate without walking aids. She was treated with further physiotherapy.
The claimant states that her clinical circumstance has been further complicated by suffering a cerebrovascular accident. This occurred in about 2014, when she was on a trip to the Greek Islands. She spent a week in hospital because of the CVA and has been on Cardiprin since. It took some months for her to be well enough to be able to fly back home again. She states however, that she had the instability in both legs before she had the CVA in Greece.
She reports that she continues to have pain and stiffness in the neck, lower back, both shoulders, left leg and both knees caused as a result of the accident on 02 June 2000. She continues to have physiotherapy once every fortnight, which she finds helpful however, her symptoms have not completely resolved.”[3]
[3] Application pp 31-32.
On examination of the neck Dr Bodel recorded a complaint of tenderness in the trapezius muscle at the base of the neck on the left side, guarding in that area and a reduced range of flexion, extension and rotation in all directions.[4]
[4] Application p 32.
Dr Bodel specifically noted that there were no clinical signs of radiculopathy in the upper limbs.[5]
[5] Application p 32.
In relation to the shoulders and upper limbs Dr Bodel noted inter alia that while there was restricted range of shoulder movement there was no instability, that there was no restriction of elbow, wrist or hand movement and no sensory loss in the dermatomal distribution or in the distribution of the ulnar nerve and reflexes were present and equal on both sides.[6]
[6] Application p 33.
In relation to the applicant’s back Dr Bodel noted a complaint of tenderness at the lumbo-sacral junction with guarding at that area. Dr Bodel noted some restriction of movement but equal bilateral straight leg raising to 70 degrees with no nerve root irritability and no wasting in either thigh or calf. Dr Bodel specifically recorded that there were no clinical signs of radiculopathy in the lower limbs.[7]
[7] Application p 33.
Examination of the lower limbs was recorded as including a complaint of tenderness over the medial joint line but no ligamentous laxity in either knee and no restriction of ankle or subtalar movement. Reflexes were equal and present in both knees.[8]
[8] Application p 33.
It is apparent from Dr Bodel’s report that the only investigation reports or scans he had available to him at the time of the examination was an ultrasound report dated
26 August 2020 in relation to the left shoulder. There were no other X-rays, CT scan or MRI scans or reports of same provided to Dr Bodel.[9][9] Application pp 33-34.
In terms of other material provided to Dr Bodel for his consideration he only references the Employee Compensation Claim Form dated 15 June 2000 (which he records as confirming the areas of injury to be the neck, the back, the arms and the legs), some reports from
Dr Boyle orthopaedic surgeon (who treated the applicant’s leg injuries following the fall in 2017), some unidentified reports of Dr Dhanapalan, a referral from Dr Dhanapalan to Ashfield Physiotherapy dated 6 April 2021 and some Allied Health requests for physiotherapy.In terms of diagnosis Dr Bodel stated,
“The diagnosis here is a musculoligamentous injury to the neck, back and knees with rotator cuff pathology in both shoulders, the left worse than the right and the consequential fractures involving the left tibia and fibula.”[10]
[10] Application p 34.
In terms of causation Dr Bodel commented;
“[11]On the balance of probabilities, the injuries occurred with that initial event at work on 02 June 2000. She was never normal after that and continued to have neck, shoulder and back pain as well as weakness and giving way in the legs which led to the subsequent giving way episode that occurred at home.”
[11] Application p 35.
Dr Bodel also stated,
“There are elements of a disease process present here and there has been aggravation, acceleration, exacerbation and deterioration to this disease process. The work injury is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration.”[12]
[12] Application p 35.
A number of observations can be made in relation to the contents of Dr Bodel’s medical report and opinion.
The first comment is that the report relies upon the doctor having received an accurate and complete history from the applicant and other sources and that inaccuracies in the history and omissions therefrom affect the weight that should be given to the opinions and diagnoses set out therein.[13]
[13] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505.
It is clear that Dr Bodel had limited material available to him other than the applicant’s history to him together with the material that was provided by the applicant’s solicitors a copy of which can be found at page 53 of the reply. I note however that Dr Bodel only references some part of that material as noted at point 60 above.
Dr Bodel does not appear to have been provided with any specialist medical opinion dealing with the applicant’s injury, treatment and ongoing problems covering any part of the period between June 2000 and the date of his examination other than the opinion of Dr Bentivoglio as set out in reports dated 11 November 2003 and 16 May 2006 and Dr Boyle (who only treated the applicant in relation to her leg injuries following the fall in 2017).
Dr Bodel had regard to no imaging reports or scans other than one ultrasound dealing with the left shoulder in August 2020.
The lack of material covering a period of almost 25 years must affect the weight I give to
Dr Bodel’s opinion.Secondly Dr Bodel misstates the contents of the Employee’s Compensation Claim form when referring to same in his report.
Dr Bodel, as noted at point 60, refers to the Employee’s Compensation Claim form as recording that the applicant injuring her neck, back, arms and legs in the fall on 2 June 2000.
The Employee’s Compensation Claim form completed by the applicant recorded the applicant as having been injured “while trying to turn a small cupboard around the weight of the cupboard strained my right arm and back and legs, and caused me to fall down on the left knee” and later notes the applicant as having suffered a “strain and twisted arm, sore knee (pulled muscles) right arm, left side of body to left knee”. There is certainly no reference in that document to injuries to the neck.[14]
[14] Application pp 5-6.
A further comment is that I find the diagnosis of musculoligamentous injury to the neck, back and knees with rotator cuff pathology in both shoulders as being very general and unclear.
Dr Bodel does not identify what part of the neck or back suffered a musculoligamentous injury nor does he indicate the nature of that injury – for instance was it a strain, a sprain, a tear or a contusion – was it to a particular tendon, muscle or ligament or more than one?
In relation to the knees what part of the knee was injured and what type of injury was sustained?
In relation to Dr Bodel’s opinion that there is a “disease process present” and that there has been “aggravation, acceleration, exacerbation and deterioration” in relation to that disease process I note that no where does Dr Bodel identify what disease process is present and what part or parts of the body were affected by any such disease. Nor does he disclose any reasoning for his conclusions.
I find the opinion of Dr Bodel in relation to his suggestion of an injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease totally unpersuasive.
Dr Bodel’s comment on the causation of the fall on 25 August 2017 was, as noted at point 62, in the following terms “weakness and giving way in the legs which led to the subsequent giving away episode that occurred at home”.
Dr Bodel does not identify any cause of the claimed weakness in the legs nor does he explain how the claimed weakness gave rise to the fall. His comment on causation of the
24 August 2017 event is in my view a bare ipse dixit that is of little or no probative value. This is particularly so having regard to the fact that when he examined the applicant Dr Bodel did not identify any radiculopathy affecting the applicant’s legs, there was no wasting of either calf or thigh, no ligamentous laxity in either knee and no restriction of ankle or subtalar movement.Given Dr Bodel’s clinical findings which do not appear to identify any serious problem that would account for weakness and instability in the knee it was incumbent on him to provide a reasoned basis for his assertion that the musculoligamentous injuries diagnosed by him had led to instability and dysfunction in the knee/s causing the fall in 2017.
I simply do not find his opinion on causation of that event to be persuasive.
The applicant also relies upon the opinion of Dr John Bentivoglio treating orthopaedic surgeon who appears to have seen the applicant on a least three occasions.
The first report, which is relied upon by the applicant despite forming part of the respondent’s Reply, is dated 22 February 2001 and was sent by Dr Bentivoglio to Dr Dhanapalan following a referral for treatment.
In that report Dr Bentivoglio notes that the applicant gave a history of developing pain in both elbows in February 1999 as a result of lifting children and in June 2000 she was “moving cupboards when she experienced severe pain in her neck and right arm region”.[15]
[15] Reply p 10.
Dr Bentivoglio further recorded that the applicant “has returned to work recently doing four complete days work. She feels this has caused her symptoms to worsen”.[16]
[16] Reply p 10.
I note that the history of having returned to work in 2000/2001 is not consistent with the history obtained by Dr Bodel nor is it consistent with the applicant’s statement.
In his report Dr Bentivoglio referred to having seen an ultrasound from April 2000 (which would pre-date the fall in June 2000) which showed an enthesopathy at both elbows.
Dr Bentivoglio also referred to X-rays showing evidence of degenerative changes at the C4/5 level and a CT scan of the cervical spine from January 2001 showing discal abnormality at multiple levels.[17]
[17] Reply p 10.
Dr Bentivoglio diagnosed two problems – the first was epicondylitis in the elbows and the second was a cervical disc lesion caused by work.
Dr Bentivoglio saw the applicant again on 11 November 2003 and provided a report dated
14 November 2003 addressed to the applicant’s general practitioner Dr Dhanapalan.In his medical report Dr Bentivoglio seems to suggest that he may have seen the applicant previously in that the report commences with a history reading “She has continued to experience some degree of symptoms in her neck and upper limbs”.[18]
[18] Application p 40.
The report relates to treatment of problems in the applicant’s neck and upper limbs.
Dr Bentivoglio notes that the applicant was specifically complaining of a lot of pain in her left upper limb extending into her hand.
Dr Bentivoglio does not specifically state a diagnosis but does note that if the applicant’s symptoms did not settle then further investigations would be needed to determine “the site of her nerve root compression”.[19]
[19] Application p 40.
Dr Bentivoglio makes no reference in his report of 14 November 2003 to any problems involving the applicant’s back or lower limbs no does he express any opinion as to causation of the applicant’s neck and upper limb problems.
Dr Bentivoglio does record a history that the applicant had been working three days a week and up to one month prior to his examination had been coping reasonably well with that work. That history is not consistent with the applicant’s history as recorded by Dr Bodel of not having worked since the date of the accident on 2 June 2000 nor is it consistent with the applicant’s statement dated 18 July 2024 in these proceedings[20] of having permanently ceased work on 2 June 2000.
[20] Application p 1.
The third report from Dr Bentivoglio is dated 6 May 2006 and is again addressed to
Dr Dhanapalan.In his third report Dr Bentivoglio notes that he has not seen the applicant for two and a half years but that the applicant reported that during those two and a half years she had continued to experience neck pain with some peripheral radiation.
When seen by Dr Bentivoglio the applicant gave a further history of symptoms worsening one month prior for no apparent reason. When seen the applicant complained of neck pain with pain radiating to both upper limbs, worse on the left side.
Dr Bentivoglio noted that a recent CT scan of the cervical spine showed discal damage at multiple levels.
Dr Bentivoglio recorded that he had referred the applicant for physiotherapy and that if her symptoms did not improve he would arrange an MRI examination. He was to see her again in three weeks.
There is no comment in Dr Bentivoglio’s third report as to the relationship between the applicant’s neck and upper limb problems and her work injury. There is no reference in the report to any back or lower limb problems much less any reference to the cause of any problems in the back or lower limbs.
There is no further report from Dr Bentivoglio before me.
Dr Bentivoglio’s reports do as a whole confirm that the applicant had degenerative problems in the neck with which could have been aggravated by the events of 2 June 2000 and such aggravation as having caused nerve root compression.
Dr Bentivoglio also confirms that the applicant had epicondylitis in both arms which he related to work injury when he first saw the applicant although it is hard to determine whether any ongoing problems from that condition were present when he subsequently saw the applicant in 2003 and 2006.
The applicant also relies upon a series of reports from her treating general practitioner
Dr Dhanapalan.The first document appearing in the Application is described as a response to GIO Questionnaire and is dated 19 March 2009.[21]
[21] Application p 42.
That document does no more than suggest that the applicant requires ongoing physiotherapy and does not even identify what part of the body is to be so treated. I find it to be of little assistance.
The second document is a report dated 9 June 2009 addressed to the GIO Australia (who were acting as scheme agent for the claim) where Dr Dhanapalan noted (inter alia) that;
“The above named patient has work related injuries as follows
Lumbar Disc Lesion L4/5 and L5/S1
Sciatic pain cuasing(sic) pain and weakness in legs
Neck pain from Degenerating Cervical spine
Elbow pain related to Epicondylitis
Headache and Reactive depression
Her pain and suffering deteriorated recently after a fall.”[22]
[22] Application p 43.
Dr Dhanapalan made no reference in that report to how the diagnosed injuries were sustained and made no reference to shoulder or hip problems nor did he suggest ongoing problems with either or both of the applicant’s knees.
The third report from Dr Dhanapalan is dated 10 July 2012 addressed to the then scheme agent Gallagher Bassett and read as follows;
“The above patient has been on compensation for work related following injuries
Lumbar Disc lesions
Cervical spine lesion causing pain in both arms
Depression and anxiety
She is currently in the middle of Physiotherapy treatment
She continues to need analgesics and Physiotherapy when needed
She is permanently unfit for any work and she is also permanently unfit for any rehabilitation.”[23]
[23] Application p 44.
Dr Dhanapalan again made no reference to how the diagnosed injuries were sustained no did he refer to any shoulder, or hip problems nor did her refer to ongoing problems with the applicant’s knees.
A request by Dr Dhanapalan dated 3 October 2018[24] for physiotherapy sent to Ashfield Physiotherapy and Allianz Workers Compensation (which may have been the scheme agent dealing with the case at that time) refers to the applicant as suffering a work related injury to her neck causing neck pain and radicular pain in the arms and lower back pain related to lumbar disc lesions. There is no reference in that referral to hip, knee or shoulder problems.
[24] Application p 46.
A further request for physiotherapy treatment from Dr Dhanapalan to Ashfield Physiotherapy (also sent to Allianz Workers Compensation Insurance) dated 16 July 2019[25] again refers to the applicant having a work related injury to the neck and radicular pain in the arms and needing treatment for lower back injuries with again no reference to the applicant having problems with her shoulders, hips or knees.
[25] Application p 47.
A further request for physiotherapy treatment from Dr Dhanapalan addressed to Ashfield Physiotherapy and Allianz Workers Compensation Insurance is dated 28 October 2019 is for physiotherapy treatment for the applicant’s hip noting,
“She recently sustained injury to right hip after a fall. She has labral injury to right hip along with Trochanteric bursitis.”[26]
[26] Application p 48.
Given there is no reference in the referral of 16 July 2019 to problems with the applicant’s hip I assume that the fall had occurred at some point between July 2019 and 28 October 2019.
No reason for the fall is set out in the referral.
The applicant’s statement of 18 July 2024 refers to the fall in 2019 but does not make comment as to the cause of same.
Dr Bodel’s report dated 7 February 2024 makes no reference at all to a fall in 2019 much less provide any opinion as to the cause of same.
Included in the Application is a further referral dated 25 August 2020 by Dr Dhanapalan of the applicant to Ashfield Physiotherapy which simply refers to the applicant as having been referred for treatment of radicular pain to the left arm and neck pain.
While there are reports from Dr Richard Boyle attached to the Application and in the records of Dr Dhanapalan also attached to the Application those reports only deal with the treatment of the applicant following the fall in 2017 but do not deal with the cause of that fall.
The applicant’s counsel in his submissions sought to rely on a number of medical reports found in the Reply.
Arguably to do so involves a breach of regulation 44 of the Workers Compensation Regulation 2016 in that only one forensic medical report may be admitted on behalf of a party to proceedings as the reports to which Mr Horan referred (being reports of
Dr Parameswaran dated 8 November 2000 , Dr Cher-Sang Kuo dated 25 June 2002 and
Dr Vijay Panjratan dated 4 December 2014) are clearly forensic reports obtained by the respondent’s insurer from time to time and are not reports from treating doctors. Given that the applicant relies on the IME report and supplementary report of Dr Bodel an attempt to rely upon the identified reports is in my view a clear breach of regulation 44.I note that the respondent has not sought to rely upon the opinions of those doctors in its submissions.
While no objection was raised by the respondent in its submissions to the applicant’s reliance on those opinions by the respondent I note that the provisions of the regulation are mandatory and there was certainly no specific consent given by the respondent to the applicant relying upon the opinions and diagnoses of Drs Parameswaran, Kuo and Panjratan. Given the circumstances it is my view that I will not consider the diagnoses and opinions of Drs Parameswaran, Kuo and Panjratan but will take into account the histories of injury and ongoing symptomatology recorded by those doctors.
Taking the approach referred to in point 125 above I note that Dr Parameswaran recorded a history of injury of development of pain in the right shoulder and right elbow when lifting children in February 1998 and on 2 June 2000 while moving a cupboard she felt pain in her right elbow, neck and right groin and fell on her left knee.[27]
[27] Reply p 4.
I note the history recorded by Dr Parameswaran of a fall on the right knee in the first part of the report however he subsequently referred to a fall on the left knee later in the report[28] which is otherwise consistent with other material in the case. I assume the first reference to a fall on the right knee was a simple typographical error.
[28] Reply p 4, p 7.
Dr Parameswaran also noted a history of the applicant continuing to experience pain in both elbows, the right shoulder and the left hip. The applicant also made a complaint of problems with the left arm increasing due to overuse.[29]
[29] Reply pp 5-7.
I note that Dr Parameswaran did not appear to record any history of continuing back or neck pain.
The report of Dr Parameswaran also reproduced a report of an X-ray of the applicant’s cervical spine dated 27 April 2000 which was noted as:
“X-ray of the cervical spine performed on 27 April 2000 revealed straightening of the cervical lordosis. There is no prevertebral soft tissue swelling, fracture or osseous destruction. There is loss of intervertebral disc height at C4/5 and at C6/7. There are small neurocentral osteophytes at these levels. There is no significant osseous encroachment upon the intervertebral foramina. The facet joints have a normal appearance. The atlanto axial joints outline normally. There are small bilateral cervical ribs and there is no subluxation in flexion or extension.”[30]
[30] Reply p 5.
Dr Cher-Sang Kuo’s report dated 25 June 2022 recorded a history of right elbow pain in February 1999 and a change of duties thereafter.[31]
[31] Reply p 12.
Dr Kuo recorded the following history in relation to the event of injury on 2 June 2000:
“On the 2/6/00, a Friday, she moved the cupboard to clear up the room so that it could be used for other activities on the weekend. As she pushed firmly her right elbow pain worsened, went up the right arm, the neck, and down to the back and left groin. Her left leg gave way and she fell to the ground”.[32]
[32] Reply p 13.
Dr Kuo recorded that following the injury in June 2000 the applicant returned to work in December 2000 working three days a week taking two weeks off in 2001 when her problems flared up.[33]
[33] Reply p 13.
Dr Kuo recorded further that the applicant was complaining of pain in both elbows with the pain in the left elbow increasing when she started to use the left arm to favour the right arm. Dr Kuo also noted the applicant as reporting that her neck was stiff and painful but that her back did not hurt.
Dr Kuo also recorded the applicant as stating that the left hip and groin area still ached if she was not careful walking and that the legs felt unstable when the hip and groin flare up.
Although not referred to by the parties in their submissions the Reply also attaches a copy medical report from Dr Edward Bates dated 2 March 2005 addressed to GIO Workers Compensation (NSW) Limited (the then scheme agent I assume).
Leaving aside the doctor’s views as to diagnosis and causation which I will not consider I note that Dr Bates records a detailed history from the applicant in relation to the events of injury as follows:
“In 1999 Mrs Drakoulis first developed neck, back, and arm pains, but with particular reference to her elbows. She saw her general practitioner about this and it was felt that the symptoms were due to repetitive lifting and she began a course of physiotherapy which lasted for four to five months.
Early in 2000 she nearly dropped a baby due to her painful elbows and her general practitioner, Dr Dhan (sic), recommended that she be moved to the 3-4 year-olds’ room which she did until June 2000.
On 2.6.00 which was a Friday, Mrs Drakoulis was stacking furniture and clearing her workroom to be used for other purposes during the weekend. She tried to push a bookshelf full of books [which was about 1 meter high, 1 meter long and 30cms deep] on a vinyl floor when, as she described it, her ‘body gave way’ and she fell to her left, collapsing onto the floor with her left leg abducted, externally rotated and extended. She claimed that ‘her body had given way in association with acute pain and weakness of her neck, back, arms and legs.’
She finished work that day and attended her local doctor who recommended that she rest over the weekend. She resumed work the following Monday, but the same acute (‘body giving way’) problem occurred again while she was setting up some small light-weight chairs for the children. As a result she went to see her general practitioner again and was off work from that date until December 2000.
She had physiotherapy which helped a bit and eventually resumed work on a graduated return basis before Christmas. She began with three days per week but was unable to cope with this, but subsequently managed two days per week until such time as she was made redundant.
She continued with physiotherapy and began a gym course early in 2001 through Work Solutions, but her symptoms continued and she was unable to increase time at work to more than two days.
Between December 2000 and March 2004 she estimated that she had averaged two or three periods of about three to four weeks in each of those years when she was unable to attend the Centre.”[34]
[34] Reply p 23.
In terms of current complaints and symptoms Dr Bates recorded, inter alia, that,
“Mrs Drakoulis complained of pain which she indicated began in her occipital region and spread down the mid-line of the cervical, thoracic and lumbar spine to the sacrum. From the neck it spread outwards to both shoulders, arms and wrists. Her hands then developed numbness, particularly in the ulnar side fingers. From her lower back it would spread down both legs to the knees. She had apparently been told that these problems would progressively worsen with age.
Neck Pain:
This was described as an aching pain which would not go away and which spread down both shoulders and shoulder blades, along both arms to her hands where the three ulnar fingers became numb.
The elbows were aggravated when chopping vegetables and similar activities and the hand symptoms led to dropping things and sleep disturbance. She had to rub the numb fingers hard to make them feel better.
Thoraco-lumbar spine:
The full extent of the spine was always sore after she had been walking for 15 minutes. She normally walked about 2 kilometres to and from work, but this was now taking her about 40 minutes because she had to stop every 15 minutes to have a rest. Before the onset of her problem she could walk for much longer periods but in the last twelve months these symptoms had become more disabling.
Lower limb symptoms:
Her left leg was worse than her right leg but both involved pain extending from her buttocks to her knees. This was an aching pain.
General:
In relation to all pains there was aggravation by cold weather, by bending incorrectly and by sudden turning of the neck. Sneezing also aggravated her symptoms, especially her neck. She was able to undertake her household chores provided she did them slowly and carefully.
She was unable to walk for as long and rarely drove the car now.”[35]
[35] Reply pp 23-24.
In relation to the histories of injury obtained by Drs Parameswaran, Kuo and Bates who all saw the applicant within the first five years of the date of injury on 2 June 2000 I note that there are considerable inconsistencies between same as well as differences between those histories and that recorded by Dr Bentivoglio in 2001.
For example Dr Kuo records that the applicant first experienced right elbow pain in February 1999 which got worse over a month when she almost dropped a child and was then transferred to the older children section whereas Dr Bates recorded the applicant as telling him that she developed neck back and arm pains in 1999 and nearly dropped a baby in 2000 which is almost a year later. The history recorded by Dr Parameswaran in relation to onset of right elbow and shoulder pain was of an onset in February 1998 (which in fairness may simply be a typographical error) but no mention of neck and back pain.
In relation to the event of 2 June 2000 Dr Bentivoglio simply recorded an onset of severe pain in the neck and right arm while moving a cupboard whereas Dr Kuo recorded the applicant as stating that the injury was sustained when the applicant pushed a cupboard which caused her right elbow pain to increase and travel up the right arm into the neck, down the back and into the left groin with the left leg giving way for unstated reasons.
Dr Parameswaran, at a time much closer to the time the applicant saw Dr Bentivoglio, recorded the applicant as moving a cupboard at work feeling pain in the right elbow, the neck and the right groin area and falling on her knee with no mention of any giving away by the knee. Dr Bates on the other hand recorded the applicant as stating that when the applicant tried to push a bookshelf her “body gave way” in association with acute pain and weakness of her neck back arms and legs and she fell to her left collapsing on the floor with her left leg abducted, externally rotated and extended.None of the versions recorded by Drs Bentivoglio, Parameswaran, Kuo or Bates is consistent with the version of the event as recorded by Dr Bodel who records the applicant as stating that while she was moving the bookshelf it overbalanced straining her right arm, that she was knocked to the ground landing heavily on her left side and striking her left knee nor are they consistent with the version of events set out in the applicant’s statement of 18 July 2024.
I also note that all of Drs Bentivoglio, Parameswaran, Kuo and Bates have a history of continued employment for some years following the event of injury on 2 June 2000 which is not consistent with the applicant’s statement and the history recorded by Dr Bodel.
Mr Horan has also referred to the medical report dated 4 December 2014 by Dr Vijay Panjratan orthopaedic surgeon addressed to Gallagher Bassett Services (the then scheme agent)[36].
[36] Reply pp 30-38.
In relation to the event of 2 June 2000 the history recorded by Dr Panjratan was:
“Mrs Drakoulis told me that every Friday the room had to be packed up and in doing this she had to move a cupboard full of books to face the wall. While doing this she fell down. Her left leg turned inwards and backwards and she fell down.”[37]
[37] Reply p 31.
The history of the event of 2 June 2000 recorded by Dr Panjratan is, in my view, significantly different from other versions proffered by the applicant as discussed above.
I note that as submitted by Mr Horan[38] Dr Panjratan does record a history given by the applicant of her experiencing her left leg collapsing while walking.[39]
[38] AWS at point 24.
[39] Reply p 32.
The respondent has relied upon the medical opinion of Dr Richard Powell orthopaedic surgeon for its denial of liability.
Dr Powell has provided two reports in the matter – the first report is dated 10 April 2017 and the second report is dated 22 July 2024. I regard the second report to be a supplementary report admissible within the terms of the Workers Compensation Regulation.
In his report dated 10 April 2017 Dr Powell expressed the view that the applicant suffered multilevel changes of cervical and lumbar spondyloses that were aggravated in a specific workplace accident in 2000.[40]
[40] Reply p 45.
In terms of history of injury Dr Powell recorded the following:
“Mrs Drakoulis indicated that she developed pain in the neck, arms and both legs in an insidious fashion, around 1999. There was no precipitating incident. She attributed her symptoms to the nature and conditions of her employment, which involved a considerable amount of lifting, bending, twisting as she dealt with the children.
Her upper limb symptoms localised to her elbows with pain, stiffness and weakness, prompting presentation to her local doctor, Dr Dhanapalan, who referred her for physiotherapy and a series of investigations including CT scan of the cervical spine which demonstrated some spondylitic changes and a right elbow ultrasound which demonstrated features of medial and lateral epicondylitis.
On 2 June 2000 she was moving a fully stocked bookshelf when she suffered the acute onset of pain in the neck, radiating down the left arm. This was followed by the development of lower limb pain and radiating left leg pain. Symptoms worsened over the weekend and she subsequently presented to her local doctor, Dr Dhanapalan.”[41]
[41] Reply p 40.
I note that the history of onset of neck, arms and both legs pain in 1999 is not consistent with other histories including those taken relatively close in time to 1999 and is not consistent with the Employees Compensation Claim form dated 7 June 2006 which only referred to right arm pain.
I note also that the version of events of injury on 2 June 2000 also differs significantly from other versions both in histories recorded by other doctors and in the applicant’s statement evidence.
Dr Powell did record the applicant advising him of the left leg giving way and having had several falls.[42]
[42] Reply p 41.
Dr Powell’s second report dated 22 July 2024 confirmed his earlier diagnosis and provided assessments of permanent impairment and losses of use on the basis that the applicant suffered an injury to the cervical and lumbar spine in the nature of aggravation of underlying spondylosis with consequent radiation of pain into the arms and legs.
As I read Dr Powell’s opinion he does not accept that the applicant suffered any separate injury to or consequential condition affecting any other parts of the applicant’s body.
Dr Powell specifically excludes any loss of use resulting from injuries received in the fall in 2017 from his assessments of loss of use[43] even though he received a history from the applicant attributing the fall to her legs giving way.[44]
[43] Reply p 69.
[44] Reply p 64.
Included in the Reply is a copy of a report of an X-ray of the applicant’s right elbow dated
11 February 1999 from Dr Luke Baker which records the applicant’s history as being one of “Right lateral epicondylitis” and the findings being;“There is no effusion or fracture and no focal osseous destruction is seen.
Both medial and lateral epicondyles outline normally. There is no enthesophyte formation at the common flexor or extensor origins and there is not extra-articular soft tissue mass or soft tissue crystal deposition.”[45]
[45] Reply p 1.
Also included in the Reply is a further report from Dr Baker dated 27 April 2000 of what I read as being a report of an X-ray of the applicant’s cervical spine and an ultrasound of the applicant’s right elbow.
The report notes the history as being “Discomfort within the right elbow”.[46]
[46] Reply p 2.
I assume given the history recorded by Dr Baker that the reason for the X-ray was to determine whether there was evidence of some problem in the cervical spine that was causing the discomfort in the right elbow rather than there having been any report of pain, restriction of movement or other problems with the applicant’s neck.
The x-ray of the cervical spine was reported as:
“There is straightening of the cervical lordosis. There is no prevertebral soft tissue swelling, fracture or osseous destruction. There is loss of intervertebral disc height at C4/5 and at C6/7. There are small neurocentral osteophytes at these levels. There is no significant osseous encroachment upon the intervertebral foramina. The facet joints have a normal appearance. The atlanto axial joints outline normally. There are small bilateral cervical ribs and there is no subluxation in flexion or extension.”
That report was of course reproduced by Dr Parameswaran as noted earlier.
The right elbow ultrasound was reported as follows;
“There is thickening and hypoechoic change at the insertion of the common flexor and common extensor tendons on the medial and lateral epicondyles. Small foci of dystrophic calcification are noted within the common extensor origin of the lateral epicondyle. There is no effusion. The triceps tendon outlines normally. No other abnormality is seen.
The findings are consistent with an enthesopathy involving the common flexor and common extensor origins, most marked at the extensor origin.”[47]
[47] Reply p 2.
Included in the Application are copies of the clinical notes of Dr Dhanapalan which rather unfortunately only commence with an attendance on 10 May 2011.
The notes reveal that the applicant was a very regular attendee at the practice with a wide range of medical problems.
The vast majority of the attendances are for medical problems unrelated to her work injuries. For instance between May 2011 and August 2017 the applicant saw her doctors approximately 131 times of which 17 attendances appear to have been for treatment of her work injuries or for the provision of WorkCover medical certificates.
I note that as part of her history to Dr Panjratan in December 2014 the applicant advised that her general health was alright. Given the range of attendances for other health problems (which I do not propose to detail in the interests of privacy but do note that same do not appear to be trivial or inconsequential issues in the main) at around that time, including a CVA event in Greece, that history was not correct.
The notes also record the applicant advising of overseas travel arrangements on a regular basis with trips to Greece and the United States which would, of course, required the applicant to endure long hours of seated inactivity in a relatively confined space.
The notes do confirm an attendance in July 2013 when the applicant complained of her left leg having given way with a subsequent fall two weeks previously[48] but no diagnosis of the cause of the fall is noted and there was a subsequent X-ray examination of the knee.[49]
[48] Application p 270.
[49] Application p 252.
The notes do not contain any contemporaneous note of the history of the applicant’s fall in August 2017.
There are two references to injury from dog bites in December 2013[50] (injury to fingers) and 31 January 2015[51] (injury to right forearm).
[50] Application p 271.
[51] Application p 275.
I note that the notes from the practice appear to note in some detail each reason for attendance often with numerated entries for each problem that was being dealt with eg the entry for 29 January 2013 at page 266 of the Application.
Given the detail of the notes as a whole I think it improbable that the records would have failed to include complaints relating to the applicant’s work injuries if same had been part of the reason for attendance.
I note that I have perused and considered the contents of the clinical notes of Ms Kristiane Heidrich and Mr Tram Chau physiotherapists appearing at pages 63 to 190 of the Application.
AALD 1 was filed by the respondent and consists in the main of the clinical notes of Royal Prince Alfred Hospital relating to the treatment of the applicant following her fall on
24 August 2017.The notes confirm that in the fall on 24 August 2017 the applicant suffered a fractured left tibia and fibula requiring fixation together with an avulsion fracture of the right ankle involving right sided cuboid and calcaneal fractures.[52]
[52] AALD1 p 27.
In his submissions Mr Horan references the notes from Royal Prince Alfred Hospital where there is a copy of the Ambulance Electronic Medical Record which under the heading “Case Description” noting the following;
“64 YO FEMALE AT HOME WHO HAS HAD A MECHANICAL TRIP AND FALL IN THE BACKYARD ON AN UNEVEN SURFACE, LOST FOOTING AND LEG GAVE WAY CAUSING PATIENT TO FALL TO THE SIDE.”[53](upper case used as per entry in notes)
[53] AALD1 p 40.
Mr Horan submits that this entry is consistent with the applicant’s version of events as set out in her statement dated 16 July 2024.
At page 87 of AALD1 in the section headed Pre-Operative Assessment a fairly detailed summary of past health problems (such as “leaky valve”), medications (even down to the fact that the applicant took fish oil at home), treating doctors (doctors Burrell and Yiannakis) is recorded together with the following history of injury;
“64F slipped in garden – fall (tripped on dog).”[54]
[54] AALD1 p 87.
At page 124 of AALD1 under the heading Admission Summary and the sub-heading “HPI -As per ED” the following is recorded;
“64yo lady following fall.
PMHx
‘leaky valve’, unsure which one, thinks it’s not very leaky. Known to Dr Yiannikis
?TIA 4years ago, no MRI changes, takes asprin
Meds:
Asprin 100mg mane
Vitamins
Fish oil
NKA
Lives with husband
Alcohol 2x weekly, had 1.5 glasses wine tonight before fall
Ex-smoker
HPI:
Tripped on dog and fell down step
Cannot remember exactly how she fell and what part of the body she landed on
No head strike,LOC.neck pain
Reports pain to L leg”[55]
[55] AALD1 pp 124-125.
I note that the above history is that recorded on admission and is consistent with the Pre-Operative Assessment record that had been prepared as part of the Anaesthetic Record.
At page 128 of AALD1 there is an entry by Ashleigh Elizabeth Read occupational therapist dated 29 August 2017 which under the heading “Progress Note Allied Health” records the following:
“Online referral received with thanks for this 64yo female admitted post trip and fall own stairs”[56]
[56] AALD1 p128.
I note that the submissions of Mr Horan do not deal with the significance of the entries in the Royal Prince Alfred Hospital referred to at points 180-183 above.
In my view the most credible of the entries are those referred to at points 180 and 181 as they are recorded in the context of other detailed and relevant material which otherwise appears accurate having regard to the contents of the general practitioner’s clinical notes.
Statement and other documentary evidence
I have already referred to the contents of the applicant’s statement dated 18 July 2024 and have noted the differences between the version of events of injury as set out in the statement and what is recorded in medical reports and clinical records.
I have also noted the apparent inaccuracy of the applicant’s statement in so far as it relates to her employment history post the events of 2 June 2000.
The Employee’s Compensation Claim form dated 7 June 2000 contains a number of relevant entries as follows:
Under the heading “What Happened?” the following is recorded:
“While trying to turn a small cupboard around the weight of the cupboard strained my right arm and back and legs, and caused me to fall down on left knee.”
Under the heading “Injury Details” “What injury(ies) did you suffer?” the following is recorded:
“strain and twisted arm, sore knee (pulled muscles)”
Under the heading “Injury Details” “What parts of the body were affected” the following is recorded:
“right arm, down left side of body to left knee”[57]
[57] Application p 5.
In the Employer’s Report of Injury dated 15 June 2000 under the heading “Injury Details” “Describe the worker’s injury or condition” the following was recorded;
“strained right arm, back and legs.”
Under the heading “Injury Details” “What parts of the body were affected” the following is recorded:
“Right arm, back legs.”[58]
[58] Application p 8.
I note that both the Employee’s Compensation Claim form and the Employer’s Report of Injury record the applicant as having previously suffered a right arm strain with no reference to any other pre-existing injuries.
Neither the Employee’s Compensation Claim form nor the Employer’s Report of Injury record any complaint of neck pain or injury.
At pages 17-20 of the Reply there is a copy of a s 66A agreement dated 4 April 2003 whereby the applicant was awarded lump sum compensation under ss 66 and 67 of the 1987 Act in respect of 5% loss of use of the left leg at or above the knee, 12% loss of use of the right arm at or above the elbow, 12% loss of use of the left arm at or above the elbow and 10% permanent impairment of the neck.
Not surprisingly given the form of the document it is not possible to determine on what basis the impairments and losses of use were alleged to arise at that time.
At page 11 of the Application as part of a notice sent to the applicant’s treating physiotherapist dated 9 November 2021 under the heading “Patient Details” “Injury” the applicant’s injury is noted as being “lumbar disc lesion L4/5 and L5/S1, Cervical spine.”
It seems to me that document provides an admission on the part of the respondent that the applicant suffered injury to the cervical and lumbar spines.
Consideration and findings
As is noted in the submissions by the respondent I did express a preliminary view that I had concerns with the adequacy of the evidence of Dr Bodel whose forensic report forms the basis of the applicant’s claim for further compensation. As noted at earlier in these reasons I do not find Dr Bodel’s opinions as being persuasive for the reasons set out therein.
In terms of the credibility of the applicant having considered the totality of the evidence I do not accept her as a reliable or credible witness.
As I have noted at some length in outlining the medical and other evidence in the case the applicant has given many variations of the history of injury on 2 June 2000 with significant differences of the description of how the event or accident occurred and the parts of the body that were injured.
Similarly the applicant’s description of the onset of problems with the arms and what occurred in relation to those problems prior to 2 June 2000 is not consistent.
A further clear example of the applicant’s unreliability as a witness is found by comparing her statement dated 18 July 2024 where she flatly states that she has not returned to work since her injury on 2 June 2000 (an assertion that also forms part of the history recorded by Dr Bodel) against the considerable evidence in the contemporaneous medical histories recording that she returned to work the Monday following the incident on Friday 2 June 2000 albeit that she then appears to have ceased work on that Monday, was off work until December 2000 and then worked on lighter duties until around March 2004. That is a period of around three and a half years of further work. Failure to accurately report that history of work is not an insignificant matter in my view.
Despite the problems with the opinion of Dr Bodel and the unreliability of the applicant as a witness there is however clear evidence of a work injury in the other material I have considered.
Taking the opinions of Drs Bentivoglio and Powell with the reports of the radiological examinations as recorded in the various medical reports it is my view that on the balance of probabilities the applicant suffered from cervical and lumbar spine degeneration (spondylosis) prior to the events on 2 June 2000.
I find that on the balance of probabilities those degenerative conditions were aggravated by the pushing of the bookshelf and consequent fall.
I note that the Employee’s Compensation Claim form and the Employer’s Report of Injury both confirm a report by the applicant of an injury to her back at that time.
Dr Bentivoglio was treating the applicant for cervical pain and diagnosed a cervical disc problem within months of the event of 2 June 2000.
The respondent’s insurer described the applicant as having lumbar disc lesions at L4/5 and L5/S1 and a cervical spine injury in its correspondence to a treating physiotherapist in 2021 and had obviously been paying for treatment of those problems for years (see the clinical records of the physiotherapists).
On the balance of probabilities, I find that the injuries to the applicant’s cervical and lumbar spine on 2 June 2000 was in the nature of an injury within the meaning of s 4(a) of the 1987 Act being a single event acting on a degenerative spine of the type considered in the case of Rail Services Australia v Dimovski.[59]
[59] [2004] 25 NSWCA 267.
I find on the balance of probabilities that the injuries to the applicant’s cervical and lumbar spine caused referred pain into the applicant’s arms and legs which could affect the use of same.
I note Dr Powell does not refer to the applicant as having suffered any injury other than the aggravation of the applicant’s cervical and lumbar spine condition.
In my view it is clear that the evidence establishes on the balance of probabilities that the applicant was suffering from right epicondylitis from around February 1999 which condition had significantly improved following a change in duties but which I also find on the balance of probabilities was significantly aggravated in the event of 2 June 2000.
I note that the applicant’s Employee Compensation Claim form and the Employer’s Report of Injury refer to the applicant as having a right arm injury, Dr Parameswaran took a history of a right arm injury at the time of the incident on 2 June 2000 and Dr Bentivoglio recorded the applicant as having sustained severe pain in the right arm at the time of the incident and diagnosed her as suffering from epicondylitis in that arm.
In relation to the left arm Dr Parameswaran recorded a history of overuse of the left arm by the applicant following the injuries on 2 June 2000 and Dr Bentivoglio diagnosed the applicant as suffering from left epicondylitis in early 2001 which he described as being caused by work activities.
On the balance of probabilities I find that the applicant suffered a consequential condition affecting the left arm as a consequence of the injuries sustained to the right arm. In that regard I note there is no evidence from the respondent that disputes that the applicant suffered from left epicondylitis in 2000/01 much less any evidence disputing the causation of that condition.
On the balance of probabilities I also accept that the applicant suffered a soft tissue injury to her left knee, groin and hip in the fall on 2 June 2000 given the contents of the Employee Compensation Claim form and the Employers Report of Injury and the histories obtained by Drs Parameswaran and Kuo of pain in those areas both at the time of the accident and subsequently.
Mr Horan has submitted that I should find that the applicant also suffered injuries to the applicant’s wrists and fingers.
Having regard to all the evidence I find on the balance of probabilities any symptoms experienced by the applicant as a consequence of the work injuries is in the nature of referred pain from her cervical spine injury which in my view is consistent with the opinion of her treating orthopaedic surgeon Dr Bentivoglio.
In relation to the applicant’s shoulders I accept that there is evidence establishing radiation of pain from the applicant’s neck into her shoulders which is again consistent with the views of Dr Bentivoglio whose opinions I accept.
I also accept that the applicant did complain of right arm pain at the time of the injury on
2 June 2000 with a history of the pain going right up the arm into her neck (see Dr Kuo)[60] and of complaint of pain in the right elbow and right shoulder (see Dr Parameswarran).[61][60] Reply p 13.
[61] Reply p 7.
I do not see much contemporaneous evidence of a separate soft tissue or other injury to the left shoulder in the incident of 2 June 2000.
On the balance of probabilities I find that the applicant suffered a soft tissue injury to the right shoulder in the incident of 2 June 2000 but also find that the applicant fails to establish on the balance of probabilities that the applicant sustained an injury or consequential condition to the left shoulder other than that caused by referral from the cervical spine injury.
I note that the applicant’s counsel Mr Horan has not submitted that there should be a referral of the right hip as part of any assessment of the applicant’s losses of use or impairments, nor of the assessment of whole person impairment.[62]
[62] AWS at point 55.
In relation to the injuries sustained by the applicant in the fall on 24 August 2017 I have already stated that I do not find the opinion of Dr Bodel on that issue persuasive.
As noted Dr Bodel simply expresses an opinion that is nothing more than a bare ipse dixit and simply appears to base his opinion on causation by accepting the history of the incident given to him by the applicant.
In my view the opinion of Dr Bodel would satisfy the tests of admissibility of expert evidence as set out in the decision of the Court in Makita (Australia) Pty Ltd v Sprowles[63] however the Commission is not bound by the rules of evidence. Nonetheless although not bound by the rules of evidence “there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission may make its findings”.[64]
[63] [2001] NSWCA 305.
[64] Per Beazley JA in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at para 82.
As Beazley JA further observed in Hancock “the question of the acceptability of expert evidence will not be one of admissibility but of weight”.[65]
[65] Hancock [83].
In my view the opinion of Dr Bodel on the causation of the fall and resulting injuries on
24 August 2017 is of little weight having regard to the concerns I have noted in relation to that opinion.I accept the evidence establishes that the applicant has made complaints of leg weakness and has suffered falls over the almost 25 year period between the date of the incident on
2 June 2000 and the present day however I consider the evidence in relation to the cause of the alleged leg weakness somewhat unsatisfactory. There is simply an absence of medical opinion dealing with the cause of leg weakness and collapse as opposed to opinions as to the cause of pain in the legs.My concerns in that regard are heightened by the fact that the applicant gave a history of her left leg collapsing at the time of the incident to Dr Kuo and of her whole body giving way to
Dr Bates in the same incident. While those histories differ from other histories the applicant has given (one of my concerns as to her reliability as a witness) they do suggest some unexplained condition that was producing symptoms of weakness at or prior to the event of injury.I also note that the applicant complains of weakness in the legs and falls having occurred over many years yet when examined by her own doctor Dr Bodel in 2024 he found no evidence of muscle wasting and normal reflexes in the legs. Those findings seem difficult to understand in the context of long term complaints of weakness and instability.
However my concerns as to the medical evidence dealing with the causation of the weakness of which the applicant complains only becomes relevant if I accept that the fall on 24 August 2017 resulted from the collapse of her leg rather than some other cause.
I have already found the applicant to be an unreliable witness and in relation to the events on 24 August 2017 I note that her version of what occurred as set out in her statement and history to Dr Bodel and Dr Powell is not consistent with the admission record and pre-anaesthetic records from Royal Prince Alfred Hospital.
I have already noted that the records from Royal Prince Alfred Hospital to which I refer were detailed and they appear to have been prepared with care. I consider those records to be a more reliable source of information than the applicant’s statement evidence and histories to Drs Bodel and Powell given many years after the event.
In relation to the ambulance records which form part of the Royal Prince Alfred Hospital clinical records I note that same are not inconsistent with applicant’s fall having been caused by tripping over a dog as the notes actually refer to a “mechanical trip and fall in the backyard on an uneven surface”[66] which is not inconsistent with a dog being part of the mechanical process. In any event the note is a relatively short form summary in a document that otherwise appears to be more directed to detailing the applicant’s medical condition.
[66] AALD1 p 40.
I also note that being tripped by a dog is an entirely commonplace event and not at all an improbable occurrence.
Further as I have noted the clinical notes of Dr Dhanapalan refer to at least two other injuries arising out of interactions with dogs (admittedly where the applicant got bitten) which suggests that dogs feature in the applicant’s domestic arrangements.
I also note that AALD1 was filed on 9 October 2024 well prior to the hearing date of this matter on 21 October 2024 and no further statement or other evidence has been filed by the applicant to deal with the contents of the medical records from Royal Prince Alfred Hospital which form part of AALD1.
If the applicant disputed the contents of the notes to which I have referred she could have sought to have admitted further statement evidence from herself or other witnesses which has not occurred.
The applicant bears the onus of establishing on the balance of probabilities that the fall on
24 August 2017 was a consequence of the applicant’s work injuries and I find that on the balance of probabilities the applicant fails to discharge that onus. Indeed the weight of the evidence in my view is in favour of the fall being the consequence of the applicant being tripped by a dog.
Accordingly the referral of the applicant to the Medical Assessor will exclude any loss of use or impairment arising from the fractures sustained to the applicant’s right and left lower limbs on 24 August 2017.
I note that I did raise with the parties the question as to whether I should determine the degree of impairment or loss of use of any part or parts of the applicant’s body.
The reason for the suggestion or request is that there is a great degree of agreement between Drs Powell and Bodel as to the extent of the applicant’s impairment of the neck and back and loss of use of each arm. In relation to loss of use of the applicant’s legs the differences in each assessment appeared to relate to whether the doctor accepted the fall and resultant fractures on 24 August 2017 was a consequential condition stemming from the work injury or injuries.
I note that both parties have submitted that the matter should be referred to a Medical Assessor which I propose to do particularly given the need for an assessment of whole person impairment in any event.
SUMMARY
On the balance of probabilities I find that on 2 June 2000 the applicant sustained an injury to her cervical and lumbar spine in the nature of an aggravation of degenerative changes or spondylosis.
I further find on the balance of probabilities that the injuries to the cervical and lumbar spines gave rise to referred pain and disability affecting both upper limbs or arms and both lower limbs or legs.
I also find on the balance of probabilities that in the incident on 2 June 2000 the applicant suffered soft tissue injuries to the right shoulder, left hip, left knee and left groin.
I find on the balance of probabilities that the applicant suffered an injury to her right arm being epicondylitis both as a consequence of the nature and conditions of her employment up to 2 June 2000 and also as a consequence of the event of injury on 2 June 2000.
I find on the balance of probabilities that the applicant suffered a consequential condition of left epicondylitis as a result of her right arm injury.
I find that the applicant fails to establish on the balance of probabilities any injury to or consequential condition affecting her left should, left or right wrist or the fingers of either hand other than referred pain arising from her injury to the cervical spine.
I find that the applicant has failed to prove on the balance of probabilities that her fall on
24 August 2017 and resulting fractures to her left and right legs were the consequence of injuries received in or arising out of the course of her employment with the respondent.The matter will be referred to the President for referral to a Medical Assessor on the basis of the above findings.
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