Ferro v Mercon Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ferro v Mercon Group Pty Ltd [2022] NSWPIC 165
APPLICANT:	Joe Ferro
RESPONDENT:	Mercon Group Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	14 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation; injury to left lower extremity accepted; respondent disputes injury to cervical spine, lumbar spine, visual system and psychological injury; applicant’s preinjury earnings agreed; Held- the applicant has not discharged the onus of proof with respect to the alleged injuries to the cervical spine, lumbar spine and the visual system; award for the respondent on the claim for injuries to those body systems; the evidence, including that of the applicant’s general practitioner, discloses the applicant suffered a psychological injury; the lay and medical evidence supports a finding the applicant was totally incapacitated for employment for the relevant 130 week period; the applicant has not discharged the requirements for establishing an entitlement to weekly benefits pursuant to section 38 of the Workers Compensation Act 1987 (1987 Act); respondent to pay the applicant weekly compensation from the date of injury to 2 August 2019 in accordance with sections 36 and 37 of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his left lower extremity (leg and ankle) and a psychological injury in the course of his employment with the respondent on 3 February 2017. 2. At the date of injury, the applicant’s pre-injury average weekly earnings were $791.92. 3. Award for the respondent on the claims for injury to the lumbar spine, cervical spine and visual system. 4. As a result of his injury, the applicant was totally incapacitated for employment from 3 February 2017 to 2 August 2019. 5. The respondent is to pay the applicant weekly compensation as follows: (a) pursuant to section 36, at the rate of $752.32 per week from 3 February 2017 to 5 May 2017, and (b) pursuant to section 37, at the rate of $633.53 per week from 6 May 2017 to 2 August 2019. 6. The applicant has not satisfied the requirements for an award for weekly compensation pursuant to section 38. Award for the respondent on the claim for weekly compensation pursuant to section 38 from 3 August 2019 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

On 3 February 2017, Joe Ferro (the applicant) suffered a fall in the workplace from a height of approximately 3 m to a concrete floor below when a slab on which he was standing on a construction site in Balmain gave way beneath him. There is no issue that at the time of the fall, the applicant was employed by Mecon Group Pty Ltd (the respondent).
There is also no issue the applicant suffered a severe injury to his left ankle. In this matter, he seeks the payment of weekly compensation from the date of injury to date and continuing. The applicant's pre-injury average weekly earnings (PIAWE) are agreed between the parties to total $791.92 per week.
The applicant alleges that in addition to the injury to his left ankle, he also suffered injury to his cervical spine, lumbar spine, a laceration to his head and injury to his visual system. Additionally, the applicant alleges he developed a psychological injury in the form of
post-traumatic stress disorder and depression.
By Section 78 Notice dated 19 November 2021, the respondent accepted liability for the applicant's left ankle injury, however, it did not accept liability for any injury to the back, neck, visual system or for psychological injury. I note the injury to the visual system is not the subject of any medical evidence in the case.
The respondent also disputes the applicant's claim of total incapacity for the relevant period and says he had a capacity for employment for much of the period claimed.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered an injury to the lumbar spine and/ or the cervical spine;
(b)    whether the applicant suffered an injury by way of impaired visual system;
(c)    whether the applicant suffered psychological injury, and
(d)    whether the applicant suffered any incapacity for employment as a result of his injury, and if so to what extent.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 21 March 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 Mr Edward-Joy, solicitor appeared for the applicant. Mr Grant of counsel instructed by Mr Lott, solicitor 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 Application) and attached documents;
(b)    Reply and attached documents, and
(c)    the respondent's Application to Admit Late Documents (AALD) and attached documents dated 16 March 2022.

Oral Evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered injury to his cervical and/or lumbar spine

Mr Grant noted the applicant's statement to the effect that prior to the injury at issue, he was allegedly mentally and physically well, but has suffered serious injury since the incident in issue.
He noted, however, that the applicant had been on a Disability Support Pension since at least 2005 until just before the date of injury, save for a short period of work which the applicant carried out in 2014.
Mr Grant also noted that the applicant was involved in a motor vehicle accident in 2015, medical records in relation to which reveal he suffered left lateral chest and neck pain in the collision. The records suggest the applicant had to be cut from his vehicle.
Mr Grant submitted it was apparent the applicant suffered a neck injury in that motor vehicle accident two years before the injury at issue, and as such his statement was incorrect. He submitted this was of particular importance given the applicant's Independent Medical Examiner (IME) Dr Poplawski had a history of the applicant not suffering any prior injuries to the relevant body systems before the injury at issue.
Mr McManamey noted, and I accept, that the applicant was only under observation in the hospital for a matter of several hours before he was discharged, and there is no medical evidence in the case to suggest he suffered ongoing neck and/or back issues as a result of that motor vehicle accident. He submitted there was no evidence of anything other than the incident at issue having caused the applicant’s problems in his cervical and lumbar spine.
That may well be the case, however, there is also little-to-no evidence that the incident in issue caused any injury to the lumbar or cervical spine. The applicant does not allege any consequential condition, nor does he allege aggravation of an underlying condition to his spine at either level. His case is he suffered frank injury to the cervical and lumbar spine in the incident on 3 February 2017.
Mr Grant noted that while some hospital records after the subject incident revealed the applicant suffered tenderness at T7/8 and L4/5, he has submitted that was not sufficient to make a finding of injury in the applicant's favour. For this part, Mr McManamey submitted that the alleged injury was a soft tissue one to the lumbar spine, and accordingly it will be appropriate for the Commission to find in favour of the applicant.
The evidence to support a finding of injury to either the cervical spine and the lumbar spine is scant. True it is, as Mr McManamey noted, that there is uncontested statement evidence from various witnesses who attest to the degree of the applicant's incapacity following the accident at issue. However, the applicant's IME, Dr Poplawski, based his opinion on the presence or otherwise of injuries to the cervical and lumbar spine on the history given to him by the applicant. That history was, “He sustained injuries to his left ankle, neck and lower back, and the scalp laceration from a piece of concrete, which had followed him down to the ground and hit him on the head”.
On examination, Dr Poplawski found moderately reduced range of movement in the cervical spine, with rotation and flexion to the left causing severe neck discomfort, with a lesser degree of pain with movement in other directions. He noted the presence of possible radiculopathy from the neck. In relation to the lumbar spine, he described a moderately reduced range of movement in all directions. Doctor’s findings in relation to the cervical and lumbar spine were as follows:
“His neck problem has been in the form of pain in the back of the neck, radiating to the posterior aspect of both upper arms and sometimes beyond to the forearms.
There have been no neurological symptoms.
Often the pain in his neck radiates up to the back of the head, and frequently causes severe migraines, which last for one or two days and requires treatment with analgesics and bedrest in a darkened room.
These symptoms have continued since his injury.
He is also troubled by low back pain, confined to the lumbosacral area, with some radiation to either side and to the upper buttocks but no further.
There have been no neurological symptoms.”
In my view, Dr Poplawski’s comment about the applicant’s symptoms arising from the accident at issue and remaining since then is inconsistent with the clinical record. Whilst
Dr Poplawski correctly notes the applicant attended over 100 times for physiotherapy after the fall, those attendance were specifically in relation to his left ankle. There is no contemporaneous clinical evidence which suggests the applicant complained of neck and low back symptoms, nor is there any radiology which supports a finding of pathological change to those body systems.
I note the statements of the lay witnesses attached to the Application make no mention of the body parts in issue. Rather, they note that the applicant was incapacitated for a significant period of time following the accident, up to and including the time of making those statements in late 2021.
The applicant's sister noted he was in a wheelchair for approximately a year after the date of injury, however, she does not indicate specific issues with the applicant's neck or back. Likewise, Mahmoud Hamze who provided a statement indicating he cared for the applicant referred primarily to the leg injury still affecting him, together with alleged cognitive impairments. Again, there is no mention of neck or back injury. The same can be said of the statement of Mr Amadeo dated 14 November 2021.
General Practitioner (GP) clinical records provide little history of any link between the lumbar and cervical spine and the incident at issue. Likewise, the report of Mr Sostaric, physiotherapist dated 14 May 2021 referred to the applicant undergoing extensive treatment three times per week from April 2017 until December 2017, a total of 102 treatments. That treatment was limited only to the applicant's foot and ankle. There is no mention whatsoever of any issues with the applicant's neck and/or lumbar spine as a result of the fall at work the subject of this proceedings, let alone any treatment of those body parts.
The ambulance record of attendance records the following:
“46 yo male pt was working on first level of building on the concrete floor with fellow worker when floor structure broke up and fell 2.8metres, according to foremans estimate, to ground floor with both workers falling with it o/a pt being assisted from, this immediate dangerous area approximately 10 metres to contained area of safety, o/e pt GCS 15 witnesses state nil LOC, well perfused obvious head injury with 3>4cm LAC parietal head and pt c/o le~ ankle pain, nil obvious injury or deformity to ankle though 10/10 pain on palpation and movement PEARL nil pain palpating C Spine and back, nil facial injury nil chest pain on palp or inspiration abdo soft and non tender, nil pelvic or upper leg pain good equal chest expansion and good clear lung fields. haemmorrhage controlled at head and good pulses and distal perfusion to left injured ankle, 12.5 mg Morphine to good effect”
There is no mention of neck or back pain in the ambulance records. The applicant was placed in a short cervical collar by paramedics; however, the clinical records show he was tender at T7-T8, and L4-L5. An entry in the Royal Prince Alfred Hospital (RPA) clinical notes at 5.45 pm on the date of the accident reveals the applicant’s cervical spine was cleared of injury and the collar removed.
The entry reporting removal of the cervical collar and T7-8 and L4-5 tenderness is the last reference to back or neck pain in the RPA notes save for a CT of the applicant’s neck taken on the date of injury. That CT found:
“Alignment of the cervical spine is satisfactory and facet joint articulations are preserved. No fracture or dislocation is identified. No thickening of the prevertebral soft tissues. Within the limits of a non-dedicated assessment the soft tissues of the neck appear within normal limits. The airway is patent.”
At the same time as the neck CT was undertaken, a scan was carried out on the applicant’s abdomen and pelvis. It also incidentally reported on the lumbar spine, finding “No lumbosacral spine fracture or dislocation. The bony pelvis is intact”.
The RPA discharge summary to the applicant’s GP likewise makes no mention of any injury to his low back or neck.
It is trite to say the applicant bears the onus of proving he suffered an injury, and that the injury is not only the event said to give rise to it, but also a sudden or identifiable pathological change to the relevant body part (see for example Castro v State Transit Authority (NSW) [2000] NSWCC 12).
Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) 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 (Castro at [138]).” (at [60])
In this matter, the applicant does not allege an aggravation of an underlying condition. Nor does he claim the nature and conditions of employment caused injury to his neck and low back. Rather, he relies on frank injury to those body systems by reason of the fall at issue. When the applicant was taken to hospital after the fall, those body systems were examined, and no pathological change was found.
In my view, despite the best efforts of Mr McManamey, the applicant has not satisfied that burden of proof. There is no evidence of identifiable pathological change to either the lumbar spine or the cervical spine, and accordingly there will be an award for the respondent on the claim for this body systems. Indeed, the applicant’s current GP Dr Carran provided a report dated 5 October 2021 in which he amply demonstrated the applicant’s problem with the allegations of lumbar and cervical spine injury. Dr Carran said:
“He has complained of chronic lower back pains he states as being since the accident and has required frequent NSAID medications to settle these episodes down. I believe he had Xrays but once again I do not think he has had an MRI scan to ascertain if there is any disc or other soft tissue damage from the accident.
He has complained of neck stiffness and chronic neck pains that sometimes radiate to his arms and sometimes up to the back of his head causing often migranous [sic] headaches requiring strong analgesia and resting in a darkened room to alleviate. A CT scan from 5/11/19 shows some degenerative changes and osteophyte formation with mild foraminal encroachment at the level of C6/7 on the left side. It is not possible to compare this with an earlier scan to ascertain if these changes were caused or exacerbated by his fall where he is noted to have injured his neck but the initial trauma series of XRays did not identify a fracture.”
There is no evidence in Dr Carran’s report to ground a finding of pathological change sufficient to satisfy a finding of injury in accordance with section 4 of the Workers Compensation Act 1987 (the 1987 Act). The best Dr Carran can say is there is “the prospect of significant soft tissue and ligamentous injury” which would not have shown up on x-ray. Plainly, that is not a positive statement of the presence of such changes. Notwithstanding
Mr McManamey’s submission to the effect there is nothing else which might explain the cervical and lumbar symptoms, an absence of alternative causes is not of itself evidence of injury having been sustained, particularly where there are no pathological findings in evidence to begin with. Moreover, in the context of section 4, symptoms are not themselves enough to ground a finding of injury.

Claim for impairment of the visual system

I note the applicant alleges he suffered impaired vision as a result of the fall at issue. There is no medical evidence whatsoever to support this allegation and it is manifestly unclear to me how it could have been pleaded as a cause of any ongoing incapacity without the small matter of some medical evidence to support it. Again, the applicant bears the onus of proving this body system was the subject of an injury, and he has not done so. Accordingly, there will be an award for the respondent on any claim in relation to the claim for impaired visual system.

Alleged psychological injury

The evidence in support of the applicant suffering a psychological injury is found only in the report of Dr Poplawski and that of his GP. There is no report from any treating or IME psychologist or psychiatrist from either party. Dr Poplawski makes a diagnosis of post-traumatic stress disorder and depression and Mr McManamey submitted that notwithstanding Dr Poplawski's expertise being orthopaedic surgery, as a medical practitioner, he is entitled to make that diagnosis just as a GP might.
Dr Poplawski's findings with respect to his psychological condition are bear ipse dixit findings. They are as follows:
“Since his fall, Mr Ferro has not been able to return to work, partly as a result of his physical symptoms as outlined above and partly as a result of the development of a fear of heights and have a PTSD...
over a period of time, he has become depressed as a result of his injuries and inability to work and take part in his recreational and sporting activities, and has been diagnosed with depression and PTSD.”
The evidence in support of that diagnosis is found in the report of GP Dr Carran. In that report, Dr Carran said:
“I also believe that Joe has been unfortunate to have developed depressed mood and Post Traumatic Stress Disorder (PTSD) as a result of his fall from a frightening height and suffering a head injury which was bound to be significant given that he sustained a very large laceration and the mechanism of injury at a height of 3.8m. I am unaware of any cognitive assessments that were done in hospital at the time of the injury but
Mr Ferro states that he has become afraid of heights and he also attributes his headaches partly to this head injury as he never suffered from them beforehand. As a result of his depressed mood and fear of returning to employment at heights we did a mental health treatment plan and a referral to psychologist but Mr Ferro says that Covid-19 stopped him from seeing the psychologist face to face and he eventually gave up.”

In my view, that is a significant piece of evidence. It provides context to Dr Poplawski’s opinion concerning psychological injury, and also explains the absence of any evidence from a mental health professional. Dr Carran might be a GP rather than a specialist, but GPs routinely write mental health plans and provide diagnoses. Dr Carran is a treating doctor, and absent any evidence to contradict him, his opinion in my view carries significant weight.
I prefer it and consider it sufficient to ground a finding of psychological injury in this matter.
I emphasise at this point I do not place any significant weight on Dr Poplawski’s diagnosis, to the extent he made one rather than merely reported the findings of the GP.

Capacity for employment

Mr Grant referred the Commission to a number of entries and medical certificates, including one from approximately mid-2017 which seemed to suggest the applicant had, by then, returned to employment. I reject those submissions, noting the usual caution which must be applied to treating medical records. Moreover, that certificate is, in my view, inconsistent with the report of the physiotherapist, Mr Sostaric, who noted the applicant was on a continual course of treatment three times per week right up to December 2017. It is also contrary to the evidence of the lay witnesses who each describe the applicant suffering severe impairment and an inability to carry out employment since the accident at issue.
In my view, even allowing for the awards made in favour of the respondent concerning the lumbar and cervical spine together with the visual system, the evidence establishes that the applicant was totally incapacitated for employment from the date of injury on 3 February 2017 throughout the relevant period pursuant to sections 36 and 37.
The evidence of the lay witnesses does not refer specifically to the body systems in relation to which I have found for the respondent, however, there can be no issue that the applicant suffered a very serious injury to his left ankle and that as a result of that fall, he was rendered for a very extensive period of time completely incapacitated for employment. I also note my finding the applicant suffered a psychological injury as a result of the fall in issue.
Mr Grant noted there was in evidence a medical certificate purporting to certify the applicant totally unfit for the entire period. I place no weight on that document, however, I note the opinion of the applicant’s treating GP dated 5 October 2021 in which he stated the applicant remained unfit for employment “and has not been able to since the accident”.
The respondent has not provided a medical report to contradict that opinion, and while
Dr Poplawski noted in mid-2021 the applicant could return to work on reduced hours and restricted duties, in my view that opinion does not contradict the opinion of Dr Carran.
I have also taken into account the lay evidence in this matter which is strongly supportive of the applicant being totally incapacitated for the 130 week period post-accident. There are some clinical records pointing to the applicant increasing his level of activity, but in my view they are not of sufficient moment to obviate the views of his treating GP.
Accordingly, in my view the applicant has discharged the onus of proof in establishing a total incapacity for the 130 week period. There will be a finding of total incapacity for the applicant for that period, which I note expires on 2 August 2019.

SUMMARY

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

[2022] NSWPIC 165

14 April 2022