Dunn v East Maitland Bowling Club Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dunn v East Maitland Bowling Club Ltd [2022] NSWPIC 221
APPLICANT:	Christopher Dunn
RESPONDENT:	East Maitland Bowling Club Ltd
MEMBER:	Philip Young
DATE OF DECISION:	18 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and section 66 of the Workers Compensation Act 1987 (1987 Act); due to heavy and repetitive work as a barman & cellarman; allegations of cervical & lumbar spine injury section 4 (b) (ii) of the 1987 Act from 2014 to September 2015 then up to & on ANZAC day 25 April 2018; Held- applicant’s claim for cervical spine injury accepted but claim for lumbar spine injury or consequential condition not established on the evidence; award in favour of applicant for weekly payments 26 April 2018 for 130 weeks; matter remitted to the President for referral of cervical spine injury for assessment.
DETERMINATIONS MADE:	1. The applicant in the course of his employment with the respondent suffered injury as follows: (a) by reason of the nature and conditions of his employment between 2014 and September 2015 the applicant suffered injury to his cervical spine (section 4 (b) (ii)) of the Workers Compensation Act 1987 (1987 Act); (b) by reason of the nature and conditions of his employment between mid 2016 and 25 April 2018 the applicant suffered injury to his cervical spine (section 4 (b) (ii)) of the 1987 Act, and (c) the deemed date of injury is 25 April 2018. 2. Award in favour of the respondent in respect of the allegation of injury to the applicant’s lumbar spine. 3. Award in favour of the applicant in respect of cervical spine injury: (a) from 26 April 2018 to 26 July 2018 pursuant to section 36 of the 1987 Act in the sum of $770.51 per week (being $811.64 x 95%); (b) from 27 July 2018 to 22 November 2021 pursuant to section 37 of the 1987 Act in the sum of $649.31 per week (being $811.64 x 80%); (c) the respondent is to receive credit for any payments made, and (d) the parties are granted liberty to apply under the slip rule if any calculations are incorrect. 4. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s cervical spine with deemed date of injury 25 April 2018. 5. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments, a copy of the Application to Admit Late Documents and attachments and a copy of these reasons for decision.

STATEMENT OF REASONS

BACKGROUND

Christopher Dunn (the applicant) is a 46-year-old man who was employed by East Maitland Bowling Club Ltd (the respondent) as a barman/cellarman. He alleges that in the course of his employment with the respondent between 2014 and 25 April 2018 he suffered injury to his cervical spine and lumbar spine.
The applicant describes the type of injury as “aggravation, acceleration or exacerbation or deterioration of disease”. He refers to an onset of cervical spine symptoms in September 2015 because of repetitious heavy lifting, bending and overhead tasks during the course of employment. It is therefore part of the applicant’s case that the work he performed between 2014 and September 2015 aggravated (etc) his spinal problems.
The applicant adds that following September 2015 he underwent an extended convalescence period and then returned to employment with the respondent in mid-2016 in his pre-injury capacity. He says that he continued to perform heavy and repetitious lifting from then to 25 April 2018. Finally, on 25 April 2018 the applicant says that because he worked Anzac Day and the club was very busy, he suffered injury by reason of his work duties on that date as well.
The applicant makes a claim for weekly payments of compensation based on an agreed figure for pre-injury average weekly earnings of $811.64 per week. In addition, the applicant seeks compensation pursuant to section 66 of the 1987 Act for injuries to his cervical spine and lumbar spine with a deemed date of injury of 25 April 2018. The applicant alleges that he has received no earnings since 25 April 2018 and he makes his weekly payments claim accordingly. The respondent has suggested[1] that the section 37 entitlement period of 130 weeks expired on 21 October 2020.
[1] Respondent’s submissions at [9].

ISSUES

The respondent asserts that if it is accepted that the applicant has sustained injury in the course of his employment at all, the relevant date of injury is that of 25 April 2018.[2] The reasoning continues that the mere fact that the applicant may have earlier experienced symptoms does not of itself establish that the applicant’s employment caused or aggravated (etc) his underlying condition.
[2] Respondent’s submissions at [11].

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter came for conciliation and arbitration hearing by teleconference on 17 March 2022. On that occasion Mr Barter of counsel instructed by Mr Nemme, solicitor, appeared for and with the applicant. Mr Hanrahan of counsel instructed by Mr Van der Hout, solicitor, appeared for the respondent.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.

DOCUMENTS BEFORE THE COMMISSION

The following documents were in evidence before the Commission:
(a)    Application to Resolve a Dispute (Application) and attachments lodged 17 January 2022;
(b)    Reply and attachments lodged 7 February 2022 (Reply), and
(c)    Application to Admit Late Documents and attachments lodged by the applicant on 11 March 2022 (AALD).
Documents the subject of the AALD, namely a supplementary statement from the applicant and Maitland Hospital discharge notes in respect of the applicant’s admission to that hospital in September 2015 were admitted into evidence without objection.

ORAL EVIDENCE

No oral evidence was given.

SUBMISSIONS

The parties filed the following written submissions:
(a)    by the applicant undated but lodged on 31 March 2022;
(b)    by the respondent dated 14 April 2022 and lodged on 14 April 2022, and
(c)    submission in response by the applicant undated but lodged on 21 April 2022.

DISCUSSION AND REASONS

Reasons

The applicant commenced employment with the respondent in 2014 performing barman and cellarman work which included performing manual and physical duties at the respondent’s premises.[3] He describes those duties as including moving and lifting beer kegs holding about 200 litres of beer[4] which would involve him in repetitively bending down, working at a quick pace to pick up the kegs, load them and push them to the dock. The applicant says that “it was difficult to hold the kegs and I would then jerk my neck and back to carry the kegs”.[5] The applicant would also be required to bend and lift cases of liquor, beer and wine on to a trolley, convey them to the cool room and then stack them on shelves which varied in height.[6] The applicant would restock fridges with drinks, liquor including soft drink and he would twist and turn and bend when serving at the bar.[7] It was necessary for the applicant to lift and carry full racks of glassware weighing in excess of 20 kilograms and bending to stack them into a commercial sink.[8] The applicant would have to move stock among fridges, move and stack cases of stock in excess of 24 kilograms which involved him bending and twisting his back and neck.[9]
[3] Applicant’s statement at [7], Application at page 1.
[4] Applicant’s statement at [10a], Application at page 2.
[5] Applicant’s statement at [10a], Application at page 2.
[6] Applicant’s statement at [10b], Application at page 2.
[7] Applicant’s statement at [10c] and [10d], Application at page 3.
[8] Applicant’s statement at [10e], Application at page 3.
[9] Applicant’s statement at [10f], Application at page 3.
The applicant explains that most of the tasks required him to be standing and having his neck in a fixed and stooped position for long periods of time carrying out heavy repetitive activities.
The respondent offers no evidence to dispute the duties outlined by the applicant except for the statement of Mr Z Davis who says the kegs were rolled (not lifted) and a trolley was available.[10]
[10] Reply page 45.
The applicant first complained of left shoulder pain to Aberglasslyn Medical Centre on 18 September 2015.[11] He was certified unfit for work from 18 September 2015 to 24 September 2015 and thereafter from 8 October 2015 to 12 November 2015.[12] A discharge summary from the Maitland Hospital of 28 September 2015[13] reveals that the applicant presented to that hospital on 28 September 2015 at 9.22pm complaining of neck and arm pain, pain radiating across his shoulders and down his left arm and a throbbing left elbow which he had experienced over the last three weeks. There is also a history of back pain given on examination being pain getting worse for the last 12 hours.[14] He was diagnosed with “acute exacerbation of back pain secondary to pre-existing severe osseous foraminol narrowing”.[15] Importantly, that admission was for treatment of both neck and lower back pain.
[11] Application at page 141.
[12] Application at pages 127-130.
[13] AALD at page 2.
[14] AALD at page 2.
[15] AALD at page 3.
Dr Christie saw the applicant on 18 May 2016 where he noted cervical nerve root irritation.[16] Dr Christie’s report concludes by confirming that there is nothing in his documentation “in relation to his work activities and any possible relationship between his symptoms and his work activities and I really cannot give an opinion on that one way or the other”.
[16] Dr Christie report of 6 October 2020 at Application page 154.
Notwithstanding this comment of Dr Christie, his second report of 18 May 2016, being a report back to general practitioner Dr Naqvi concludes as follows:
“The clinical picture would certainly suggest an episode of cervical nerve root irritation. He seems to be settling down reasonably well at the moment. I am happy for him to go back to full time work but I have suggested that he not do any repetitive work involving lifting above shoulder height…”.[17]
[17] Dr Christie report of 18 May 2016 at Application page 139.
It can be inferred from Dr Christie’s conclusion of 18 May 2016 that Dr Christie thought that the applicant’s work had at least the potential to aggravate his pathology. The applicant in his statement asserts that in the lead up to Anzac Day and throughout the life of his employment with the respondent he performed heavy lifting and “generally frantic work”.[18]
[18] Applicant’s statement at [15], Application at page 13.
In terms of the applicant’s work between September 2015 and Anzac Day, 25 April 2018, the applicant apparently told Dr Bentivoglio on 23 November 2020 that although his neck and left arm pain persisted for 10 months after 2015, “the pain settled spontaneously, and he got back to his work”.[19] It was Dr Bentivoglio’s opinion that the events of 25 April 2018 “has just exacerbated the neck pain and brachialgia that existed in 2015”.[20] Dr Bentivoglio also notes that 25 April 2018 was a day of heavy lifting and repetitive bending which exacerbated his neck pain going into his left arm.[21]
[19] Application at page 104.
[20] Application at page 106.
[21] Application at page 106.
In terms of the applicant’s back injury, Dr Bentivoglio was provided with Dr Hyde-Page’s report of 10 September 2020 and agrees with Dr Hyde-Page’s comment concerning the applicant’s lumbar spine.[22] He adds that whilst he is in agreement with Dr Hyde-Page “however, I do believe that the work injury in 2018 has exacerbated the pre-existing problem, which settled spontaneously in 2015”.[23]
[22] Application at page 109.
[23] Application at page 109.
Dr Bentivoglio provided a supplementary report to the solicitors dated 3 March 2021.[24] Despite saying that the CT scan of 7 September 2020 allowed the conclusion that the applicant’s back pain “is probably related to the bilateral pars defects, which is an inherent weakness of his lumbar spine”[25] Dr Bentivoglio still gave a whole person impairment assessment in respect of the applicant’s lumbar spine.[26]
[24] Application at page 114.
[25] Application at page 114.
[26] Application at page 114.
Dr Bodel assessed the applicant on 11 May 2021[27] and obtained a history that from 2015 heavy lifting aggravated the applicant’s neck and left arm pain “and he would frequently wake from sleep with pain and stiffness in the neck”. The applicant gave Dr Bodel a history of putting up with the pain until 25 April 2018 when he went off work and saw Dr Christie. The history to Dr Bodel is then:
“Later he developed lower back pain and a soreness and he was on and off work. His main ongoing complaint however was for the cervical spine”.
[27] Application at page 116.
In terms of the cervical spine injury, Dr Bodel agrees with Dr Bentivoglio that the cervical disc pathology at C5/6 and C6/7 and radiculopathy involving the left C6 and C7 nerve roots are work related. Dr Bodel asserts that the work at the very least aggravated, accelerated, exacerbated and deteriorated degenerative disc disease in the applicant’s cervical spine.[28]
[28] Application at page 120.
In his supplementary reported dated 2 August 2021 Dr Bodel includes an assessment of whole person impairment in respect of the applicant’s lumbar spine.[29] This assessment seems to be somewhat inconsistent with Dr Bodel’s assessment in his substantive report.[30] In his substantive report Dr Bodel summarises the injuries by reference only to neck injury and referred pain into the left arm.[31] Although he records lower back pain[32] and he notes the lumbar spine CT scan revealed minor degenerative change at L5/S1, there is no mention by Dr Bodel of causation in relation to the lumbar spine.
[29] Application at page 124.
[30] Application at page 116.
[31] Application at page 117.
[32] Application at page 118.
The referral back to Dr Christie by Dr Sarki on 7 May 2018, shortly after the Anzac Day events, was a referral for left sided cervical pain radiating to the applicant’s left arm, hand and fingers.[33]
[33] Application at page 141.
A statement is available from Mr Davis dated 13 August 2020. Mr Davis is the respondent’s human resources manager. At the time of the applicant’s employment, Mr Davis was the applicant’s direct supervisor. Mr Davis confirms that he was aware that the applicant had sustained “a similar condition to his current one, sometime in 2015”.[34] He confirms that the applicant returned to normal duties in June 2016[35] and confirms that 25 April 2018 was “a very busy day”.[36]
[34] Reply at page 44.
[35] Reply at page 45.
[36] Davis statement at page 45 [15].
Although Mr Davis claims that the applicant played bowls on 26 April 2018, this is denied by the applicant.[37] The applicant in his supplementary statement of 9 March 2022[38] states that he has not been able to play lawn bowls after Anzac Day 2018.
[37] Davis statement at [22] at Reply page 46.
[38] AALD at page 1.
The applicant was examined by Dr Hyde-Page at the request of the insurer on 4 September 2020 and his report of 10 September 2020 is in evidence.[39] Dr Hyde-Page obtained a history of the applicant developing neck and left arm pain in mid to late 2015 which first came on after he had been working for the respondent for over a year.[40]
[39] Reply at page 48.
[40] Reply at page 49.
Dr Hyde-Page noted that the applicant’s neck and left arm symptoms “never settled down completely and he was always having to be very careful with his work activity”.[41] Then there was “major aggravation” on Anzac Day 25 April 2018 after which the applicant woke up with neck pain and stiffness “and severe shooting pain down his left arm into the hand with a lot of pins and needles”.[42]
[41] Reply at page 49.
[42] Reply at page 49.
The history continues of a return to see Dr Christie, further injections and then in January 2019 left C5/6 and left C6/7 foraminotomies.
The applicant told Dr Hyde-Page that the applicant’s back pain became “a major problem and has continued to be so” after the neck surgery.[43]
[43] Reply at page 50.
Dr Hyde-Page concludes in relation to the applicant’s thoracolumbar back pain that on the history this problem has come on more recently and he has seen no specialist for the treatment and his back complaint is not work related.[44]
[44] Reply at page 55.
Dr Hyde-Page again reviewed the applicant on 3 November 2021.[45] On this occasion he had developed back pain but “the worse pain is the neck pain radiating down his left arm”.[46] Again Dr Hyde-Page regarded the back pain to be unrelated to the applicant’s employment with the respondent. He took the view that the applicant had a major complaint in his cervical spine before he commenced work with the respondent.
[45] Report of Dr Hyde-Page at Reply at page 57.
[46] Report of Dr Hyde-Page at Reply at page 58.
Dr Hyde-Page concludes in relation to neck and left arm symptoms that they relate to degenerative disc disease and that the onset of the applicant’s symptoms were consistent with a degenerative condition which was present prior to the applicant starting work with the respondent. Dr Hyde-Page does not, however, address the question as to whether the applicant’s work in fact aggravated (etc) his cervical symptoms except to say that the applicant did not really do heavy work[47] and that these symptoms would have developed anyway irrespective of his work. The reference to “not really” doing “heavy work” is at total odds with the uncontroverted evidence of the applicant. The development of symptoms irrespective of the applicant’s work ignores the fact that the applicant did suffer symptoms at work and for those reasons the opinions of Dr Bodel and Dr Bentivoglio are preferred.
[47] Reply at page 54.
A report is available from Mr M Cox physiotherapist dated 11 February 2016.[48] The treatment described relates wholly to the applicant’s cervical spine. The applicant’s cervical spine is the subject of reports of general practitioner Dr Naqvi of 27 April 2016,[49] Dr Christie of 18 May 2016,[50] the referral of Dr Naqvi dated 17 May 2018,[51] report of Dr Christie on 2 July 2018,[52] report of Dr Harron dated 10 August 2018.[53] A GP management plan dated 5 March 2020[54] refers to “back pain” but is otherwise without diagnosis. A CT scan of the lumbar sacral spine performed on 7 September 2020 reports “no evidence of significant disc protrusion or canal
[48] Application at page 137.
[49] Application at page 138.
[50] Application at page 139.
[51] Application at page 141.
[52] Application at page 142.
[53] Application at page 142.
[54] Application at page 153.
In my view the applicant’s evidence concerning his pain and other symptoms in connection with his work should be accepted, supported as it is to various extents by Dr Christie, Dr Bodel and Dr Bentivoglio. It is appropriate in my view that findings of injury to the applicant’s cervical spine be made. In view of the history evidently given to Dr Hyde-Page concerning onset of symptoms concerning the lumbar spine and the absence of supporting evidence generally it is appropriate that an award for the respondent be entered in respect of the allegation of injury to the applicant’s lumbar spine.

FINDINGS AND ORDERS

The applicant in the course of his employment with the respondent suffered injury and a consequential condition as follows:
(a) by reason of the nature and conditions of his employment between 2014
and September 2015 the applicant suffered injury to his cervical spine (section 4 (b) (ii)) of the 1987 Act;

(b) by reason of the nature and conditions of his employment between
mid 2016 and 25 April 2018 the applicant suffered injury to his cervical spine (section 4 (b) (ii)) of the 1987 Act, and
(c)the deemed date of injury is 25 April 2018.

Award in favour of the respondent in respect of the allegation of injury to the applicant’s lumbar spine.

38. Award in favour of the applicant in respect of cervical spine injury: -

(a)    from 26 April 2018 to 26 July 2018 pursuant to section 36 of the 1987 Act in the sum of $770.51 per week (being $811.64 x 95%);
(b)    from 27 July 2018 to 22 November 2021 pursuant to section 37 of the 1987 Act in the sum of $649.31 per week (being $811.64 x 80%);
(c)    the respondent is to receive credit for any payments made, and
(d)    the parties are granted liberty to apply under the slip rule if any calculations are incorrect.

39. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s cervical spine with deemed date of injury 25 April 2018.

40. The President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments, a copy of the Reply and attachments, a copy of the AALD and attachments and a copy of these reasons for decision.

[2022] NSWPIC 221

18 May 2022