Duff v Brobrik Pty Ltd
[2022] NSWPIC 268
•3 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Duff v Brobrik Pty Ltd [2022] NSWPIC 268 |
| APPLICANT: | Alan Duff |
| RESPONDENT: | Brobrik Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 3 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for right hip replacement surgery; respondent alleges applicant did not suffer a work-related injury to his right hip; Medical requirement for surgery not in issue; Held- the applicant suffered an injury to his right hip in the course of his employment with the respondent; Castro v State Transit Authority (NSW), Zickar v MGH Plastic Industries Pty Ltd followed; the preponderance of the medical evidence supports a finding of such injury, particularly the evidence of the treating doctors who noted the similarity between symptoms in the lumbar spine and in the hip; the fact the applicant’s doctors focused on his symptoms arising from a lumbar spine injury does not preclude the presence of a right hip injury; the applicant’s pattern of complaint and symptoms regarding his hip have been consistent since the date of injury, and there is no suggestion he suffered any hip symptoms before the injury at issue; the requirement for the proposed surgery results from the workplace injury; Jenkins v The State of Tasmania and Taxis Combined Services (Victoria) Pty Ltd v Schokman discussed and followed; respondent to pay the costs of and incidental to the proposed surgery. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to his right hip in the course of his employment with the respondent on 8 September 2016. 2. The applicant requires total right hip arthroplasty surgery as requested by Dr Randhawa, which surgery is reasonably necessary as a result of the injury referred to in paragraph 1 above. 3. The respondent is to pay the costs of and incidental to the surgery proposed by |
STATEMENT OF REASONS
BACKGROUND
On 8 September 2016, Alan Duff (the applicant) was in the course of his employment with Brobrik Pty Ltd (the respondent) when he suffered an accepted injury to his lumbar spine as a result of repetitively lifting and placing heavy blocks into the ceiling of a worksite.
The applicant also alleges he suffered an injury to his right hip on that occasion and brings a claim seeking payment by the respondent for a proposed right total hip replacement. There is no issue the proposed surgery is a medical necessity.
By section 78 notice dated 16 December 2021, the respondent disputed liability for the proposed surgery on the basis the applicant had not suffered a right hip injury in the incident on 8 September 2016, and that the requirement for the proposed surgery is not as a result of any work-related right hip injury.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a right hip injury, and
(b) if so, whether that injury has brought about the need for the proposed surgery.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 10 May 2022. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr McManamey of counsel instructed by Brydens Lawyers appeared for the applicant. Ms Warren of counsel instructed by Hicksons Lawyers appeared for the respondent.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Applcaition) and attached documents;
(b) Reply and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 18 March 2022 and attached documents, and
(d) applicant’s AALD dated 5 May 2022 and attached documents.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered a right hip injury
The applicant carries the onus of proving that his right hip condition is work-related. Although the broad matter in issue is the reasonable necessity of the proposed right hip replacement surgery, it is the causal element which is in dispute rather than the medical need for that surgery. That is to say, the parties agree the applicant needs a right hip replacement, the question is whether the incident at work on 8 September 2016 has caused an injury to the right hip which has in-turn necessitated that surgery.
The respondent has placed in issue whether the applicant suffered an injury as that term is defined in section 4 of the Workers Compensation Act 1987 (the 1987 Act). Section 4 relevantly provides:
“In this Act: Injury means
(a) Personal injury arising out over in the course of employment,
(b) Includes a ‘disease injury’, which means:
i.A disease that is contracted by worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
ii.The aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
There is useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro). That case makes clear that what is required to constitute injury is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning, namely atrial fibrillation, without pathological change did not constitute injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent DePaul (NSW) v Maxwell James Keir as Administrator of the Estate of Anthony John Keir [24 NSWWCC PD 47 (Keir) added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change.”
An applicant is able to rely on injury simpliciter despite the existence of an underlying disease, as was highlighted in the High Court’s decision in Zickar v MGH Plastic Industries Pty Ltd (996) 187 CLR 310 (Zickar). In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurysm. The congenital condition could be characterised as a disease, however, that would not have satisfied the requirements of the definition in section 4. The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held that the presence of the disease did not preclude reliance upon that event as a personal injury. Toohey, McHugh and Gummow JJ agreed with the passage in Accident Compensation Commission v Macintosh [1991] 2VR253 that:
“It is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur” (at [262]). The terms ‘personal injury’ and ‘disease’ are not mutually exclusive categories. A sudden identifiable physiological or pathological change to the body brought about by an internal or external event can be a personal injury and the fact that the changes connected to an underlying disease process does not prevent the injury being a personal injury.”
The above authorities are of importance in this matter, as the applicant relies on the events of 8 September 2016 as being the cause of his alleged right hip injury. The evidence discloses, and it is not really in issue, that on this date the applicant was laying heavy blocks which weighed about 16 to 17 kg in between air-conditioning ducts at a worksite. That involved holding the blocks above head height and twisting his back. The applicant states that after the carrying out of this task, he felt a sharp right lower back pain radiating down to the right buttock and right groin. He said he continued working as the working day was coming to an end.
In a supplementary statement filed with the applicant’s first AALD, the applicant stated:
“Since the date of injury, I have been experiencing pain in the right lower side of my back and hip region however, all doctors were focusing on my lower back because the pain was localised in my right lower back.”
There is no question the applicant suffered a lumbar spine injury in the incident at issue. The question for determination is whether the same incident which caused the lumbar spine injury also caused an injury to the applicant’s right hip.
For the applicant, Mr McManamey submitted the question of the right hip injury was not really considered by treating medical practitioners until a number of years after the incident at issue, because those practitioners were (perhaps understandably) focused on the applicant’s lower back. He submitted the applicant’s complaints to his treating practitioners in the early aftermath of the incident at issue are consistent not only with a lumbar spine injury, but also for the right hip injury having taken place.
In support of this contention, Mr McManamey particularly relied upon opinions of treating surgeon Dr Randhawa, who set out in the report to the respondent’s insurer on 21 October 2021 his reasoning behind a finding of a link between the incident on 8 September 2016 and the accepted pathology of severe osteoarthritis in the applicant’s right hip. In that report,
Dr Randhawa said:“A query has been raised as to how the right hip osteoarthritis is related to the workplace injury to the lower back. It is common for a hip injury to initially be interpreted or perceived as a lower back injury. These two anatomical regions are in close proximity and often the first thought by the patient is of a back injury. However, paravertebral pain is commonly a symptom of a hip injury. Although Mr Duff’s initial investigation and management was for his lower back, his hip injury ultimately seems to have been the injury of concern. I note that all attempts at treating Mr Duff’s back had been unsuccessful. This is because the injured area is actually his hip.
Mr Duff advises me that his injury was due to severe force where he had a fall. Apart from this he has had repetitive years injuries of his right hip because of heavy lifting and working at awkward heights.”
It must be said at this point in time that there is no suggestion the applicant suffered a fall in the course of his employment. Rather, the injurious event at which the applicant complains is that of repetitive heavy lifting of blocks above head height on 8 September 2016.
In my view, there is little doubt the applicant complained of pain in the region of his right lateral hip including the buttock and groin in the immediate aftermath of the incident at issue. That, however, is not necessarily determinative of whether he suffered an injury to that body system as opposed to merely suffering one to his lumbar spine.
In the workers’ compensation context, the appropriate test for causation was set out by Kirby P (as he then was) Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:
“The result of the case is, is that each case where a causation is an issue and the Workers Compensation claim must be determined on its own facts. When a death or incapacity results from a relevant work injury is a question of fact. The importation of notion’s approximate caused by the use of the phrase ‘results from’, is not now accepted. At the same token, the mere proof that certain events occurred which predisposed the worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
In this matter, the applicant also relied upon a report from a consultant physiotherapist, Mr Milazzo to whom the applicant was referred by the respondent. In that report dated 20 April 2017, Mr Milazzo recorded the following history:
“Mr Duff reported that he had been working as a bricklayer; on 08 September 2016 he described that he was laying fire rated blocks in awkward postures – he estimated the box weighed 17 kg each. He described that he heard ‘a pop and a crack’ over the right lateral hip region. The incident occurred toward the end of the workday, and he completed his work, which he estimated was for about another 45 minutes. On the following day, Mr Duff said that he was unable to move his right leg, experiencing severe pain and cramps on the right leg.”
Mr McManamey took the Commission to the diagram which form part of the report in which there was shading over the right lateral hip region. That diagram was consistent with the report from the physiotherapy that “the primary area of pain was in the right posterior-lateral gluteal region; no symptom radiation was reported in either leg”. When the applicant was subjected to physical testing, the physiotherapist noted the hip quadrant test were unremarkable, however, “palpation of the lumbar-pelvic region localised focal areas of pain over the right lateral gluteal muscles, superior trochanteric region and over the right lateral sacroiliac joint. Regional hypomobility and local pain provocation was associated with assessment of the lower lumbar spinal articulations”.
Relevantly, Mr Milazzo found the following:
“To me, the current clinical test findings did not indicate that Mr Duff’s symptoms are primarily originating from the lumbar region. This may explain the relative ineffectiveness of the spinal injections. In contrast, Dr Vote (IME-29-10-6 2016) advised that the diagnosis was lumbar facet impingement with underlying degenerative factors.
Given the lack of neurological findings, it is my opinion, that while the current symptoms may have a link to the lumbar spine, Mr Duff does not require spinal surgical intervention.”
Mr McManamey submitted that opinion was consistent with that of treating surgeon Dr Randhawa.
The applicant also relied upon the report of Dr Habib, IME who noted a history of the various treatments carried out on the applicant since the time of the injury at issue. In his report,
Dr Habib summarised the applicant’s injury as,“severe low back and right groin symptoms during the course of his normal and somewhat unusual heavy block laying, avoiding the air-conditioned ducts, above head height… He developed the lumbar spinal and right hip pain from the severe aggravation injury.”
Mr McManamey submitted the respondent’s IME Dr Vote took an incorrect history when he described the onset of right hip pain taking place some years after the injurious incident. He took the Commission to the various histories taken in the months and years immediately following the incident at issue and noted there were symptoms complained of which were consistent of a hip injury for all that time.
Ms Warren, counsel for the respondent submitted that Dr Vote’s history was a correct one and that he had the benefit of all of the relevant radiology including an MRI scan which demonstrated not only osteoarthritic changes to the right hip, but also to the left. Ms Warren quite appropriately conceded that the changes in the right hip, were, however, significantly more serious than those demonstrated on the left-hand side. Ms Warren also relied on the history given by the applicant of treating surgeon Dr Al-Khawaja in November 2016 at which time the applicant described “a popping sensation” in his lumbar spine. She noted that contrasted with the location of the alleged popping sensation which was given to the consultant physiotherapist.
Ms Warren also submitted, contrary to Mr McManamey, that the applicant did derive some benefit from lumbar spine injections albeit for a short period of time, and that this was suggestive of the injury having taken place in that region rather than in the right hip, which she submits is purely a result of degenerative change.
Ms Warren also submitted that Dr Vote did not ignore the applicant’s hip issues, noting they were referred to in his first report which he stated only some three months post injury. Nevertheless, Dr Vote recorded a normal hip examination at that time.
On balance, I am of the view that the applicant has discharged his onus of proof in establishing the presence of a right hip injury. Although Dr Vote refers to the applicant complaining only in 2021 of the onset of right hip pain, in my view, the preponderance of the medical evidence establishes a consistent pattern of complaint over the right hip region from the date of accident. That includes complaints to Dr Randhawa, Dr Al‑Khawaja and also to Dr Habib.
In my view, the opinion of the consultant physiotherapist to whom the respondent sent the applicant is also telling. He notes the presence of right hip pain and is suggestive even at an early juncture of the seat of that pain being something other than ongoing lumbar issues. That is consistent with the report provided by Dr Randhawa to the respondent, in which he explains the common misdiagnosis and misattribution of hip symptoms to the lumbar spine given their anatomical proximity.
Dr Randhawa and Dr Al-Khawaja are treating doctors. Absent some demonstrative fault in either their reasoning or in the history taken by them, their opinions carry considerable weight. Their views are supported in this instance not only by the applicant’s IME Dr Habib, but also by the respondent’s own consultant physiotherapist. I make no criticism of Dr Vote’s methodologies; however, his opinion boldly stands alone in the context of this matter. Whilst he has had the benefit of examining the applicant on three occasions, in my view, Dr Vote has mischaracterised the complaints made by the applicant to him and to other doctors over the course of a number of years. That is, in my view, the applicant was consistently complaining of issues over the right buttock, hip and groin region from the time of the accident.
On balance, I am therefore satisfied that the applicant has demonstrated that he suffered an injury to his right hip in the course of his employment with the respondent on 8 September 2016.
Whether the requirement for surgery arises from the right hip injury
The “results from” principle of causation applies to section 60 claims. Confusion is sometimes created by the fact that section 60 liability also has a requirement that the treatment be “reasonably necessary”. The principles of causation and reasonable necessity are different and must be kept distinct in section 60 claims. It is frequently a separation which is lost, with a differing principle misunderstood in submissions. That is not, however, the case in this matter. Both counsel quite rightly acknowledged that the treatment sought is medical necessary for the applicant.
A medical practitioner may advise a worker who has aggravated an osteoarthritic hip joint by their work that they need a hip replacement operation. The same practitioner may also advise that without the injury, the worker would inevitably have come to the same surgery. The question which is relevant, and highlights the distinction between “the mere but for” and “common sense” causation is: Did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light a need for treatment that was going to be needed anyway, but that treatment is required now and the option to wait and/or try other treatments has been removed?
A decision which gives recognition to this distinction is Jenkins v The State of Tasmania [2012] TASSC 22. In that case, a worker was injured in a work-related motor vehicle accident the subject of a claim for permanent impairment. There was no question he suffered an impairment at the time of assessment, however, in order to establish an entitlement to compensation, the worker had to establish the impairment resulted from the injury suffered in the motor accident. The worker had undergone an intervening medical procedure which called into question the causal link between the original injury and the agreed impairment.
The original injury from which the worker suffered was a contusion to the cervical spinal cord at C4/5. He also had pre-existing but asymptomatic cervical stenosis. His surgeon indicated that in the event of further trauma, the applicant’s stenosis constituted a further risk of injury and recommended a C3–C7 cervical laminoplasty. Following the surgery, the applicant retained a degree of impairment, however an MRI taken post-surgery show the pathological change caused by the original injury had passed.
In determining whether the worker’s impairment resulted from the injury at issue, the Commission was required to ask whether the surgical procedure resulted from the injury. Relevantly, the resolution of the cervical cord contusion, and the worker’s own treating surgeon indicated the correction of the canal stenosis was recommended regardless of the contusion already showing signs of healing. The Commission at first instance found the requirement for the surgery was brought about by the surgeon’s desire to protect the worker from the risk of catastrophic further spinal cord injury in the event of more trauma, rather than to address the work-related injury.
On appeal, Tennent J in the Tasmanian Supreme Court discussed the relevant law regarding “results from” in the context of treatment and noted if there were multiple reasons for surgery and the workplace issue was one of them, that was sufficient to establish a relevant causal link between the injury and the surgery. His Honour, in finding the Commissioner at first instance had applied the correct principles, noted that findings in relation to causation are findings of fact. His Honour held the finding at first instance was open to the Commissioner and rejected the notion that even if the worker may not have had the surgery had he not suffered the injury at issue, such a set of circumstances does not of itself establish causation, as the surgery was not carried out to correct the injury, but rather a pre-existing condition which only came to light after the work-related accident.
Otherwise, the basic principles of causation can arise in a variety of ways when it comes to medical treatment. In Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18, the worker, a taxi driver, was assaulted in the course of his employment. He suffered extensive facial injuries during the assault, which had eventually resulted in the loss of four teeth, requiring treatment with a four-unit fixed bridge. At the time of this treatment, it was noted that Mr Schokman had pre-existing periodontitis unrelated to the assault. In 2012, Mr Schokman’s bridge broke. In examining Mr Schokman in relation to this issue, a further complication of periimplantitis was identified, requiring treatment. The insurer denied liability for treatment related to the periimplantitis and periodontitis in part due to
Mr Schokman’s pre-existing periodontitis, as well as his poor oral hygiene and history of smoking.Roche DP confirmed the arbitrator’s decision finding that treatment was reasonably necessary as a result of the injury. After affirming to the now trite law ACQ v Cook that a condition can have multiple causes, the Deputy President stated on causation:
“It follows that, even if it were accepted that the periimplantitis was caused (in the sense of having been materially contributed to) by the non-work factors listed by Dr Boland, that would not prevent a finding that, as a matter of common sense, the need for the proposed treatment has arisen ‘as a result of’ the injury. That is because, as Dr Roessler explained, the periimplantitis is ‘only there because Mr Schokman has implants.’ This is not a matter of merely saying 'but for' the presence of the implant
Mr Schokman would not have had periimplantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment because it brought about the need for the implants, even if other factors were also present that may also have contributed to that need.”There is no evidence in this matter to suggest the applicant suffered from any right hip problems prior to the injury at issue. It is the symptomology associated with an injury that brings about a need for treatment, surgical or otherwise. The mere presence of osteoarthritis in the applicant’s right hip is not the cause of the requirement for surgery. It is the pain and disability associated with the work-related injury’s impact on that condition which has caused the requirement for the surgery. It is trite law to state that a single event can cause an aggravation to an underlying condition. There is no suggestion the applicant suffered any issue with his right hip before the incident at issue, and it is apparent as I have already found that he did suffer pain, discomfort and disability in his right hip after the injury at issue and as a result of it.
Accordingly, in my view the requirement for the medically necessary surgery proposed by the applicant’s treating surgeon is bought about as a result of the workplace injury suffered on 8 September 2016 to the applicant’s right hip, and the Commission would accordingly order the respondent to pay the reasonably necessary expenses of and associated with that procedure.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out at page one of the Certificate of Determination.
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