Flook v JL Stewart & Sons Pty Ltd
[2022] NSWPIC 116
•22 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Flook v JL Stewart & Sons Pty Ltd [2022] NSWPIC 116 |
| APPLICANT: | Matthew Flook |
| RESPONDENT: | JL Stewart & Sons Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 22 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims permanent impairment compensation resulting from injury sustained to his left upper extremity, right upper extremity, cervical spine and scarring in the course of his employment with the respondent; the respondent disputes the applicant’s alleged injury to the cervical spine and the level of impairment the applicant sustained resulting from injury sustained in the course of his employment with the respondent; Held– the applicant sustained injury to his cervical spine in the course of his employment with the respondent; the applicant’s claim for permanent impairment resulting from injury sustained to his left upper extremity, right upper extremity, cervical spine and scarring in the course of his employment with the respondent is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his cervical spine on 26 June 2014 in the course of his employment with the respondent and the applicant’s employment with the respondent was a substantial contributing factor to injury. 2. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to his left upper extremity (left shoulder), right upper extremity (right shoulder), cervical spine and scarring, as agreed or determined by the Commission, with date of injury of 26 June 2014, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 27 January 2022 lodged on behalf of the respondent and attached documents. |
STATEMENT OF REASONS
BACKGROUND
At the date of injury the subject of these proceedings, the applicant, Matthew Flook (Mr Flook) was employed by the respondent, JL Stewart & Sons Pty Ltd (JL Stewart & Sons), working as a delivery driver. Mr Flook commenced employment with JL Stewart & Sons in late 2013. Mr Flook’s employment with JL Stewart & Sons is now terminated, and he remains unemployed. Mr Flook is currently 44 years of age.
Mr Flook alleges that on 26 June 2014 he sustained injury in the course of his employment with JL Stewart & Sons.
In previous proceedings in the Workers Compensation Commission (Matter No. 5924/15) the circumstances of injury are described in the following terms:
“on 26 June 2014, the applicant injured his left shoulder in the course of performing his work duties as a delivery driver. Whilst performing a particular delivery, the applicant was required to stand on the side step of the truck’s trailer, bend forward at the waist into the trailer, extend his arms forward, grab a box, and pull the box towards him. While in the process of pulling the box towards him from the pallet, the applicant felt pain and discomfort in his left shoulder accompanied by a cold sensation…”
In these current proceedings the circumstances of injury are described in the following terms:
“While performing a delivery, the Applicant was required to stand on the side step of the truck’s trailer, bend forward at the waist into the trailer, extend his arms forward, grab a box, and pull the box towards him. While in the process of pulling the box towards him from the pallet, the Applicant suffered a left shoulder and cervical spine injury and/or aggravation, exacerbation, acceleration or deterioration of disease; and Applicant suffered a right shoulder injury/condition due to compensatory use; and Applicant suffered post-surgical scarring”.
Mr Flook makes a claim for permanent impairment compensation payable under s 66 of the Workers CompensationAct1987 (1987 Act) for 20% whole person impairment resulting from alleged injury sustained to his left upper extremity (left shoulder), right upper extremity (right shoulder), cervical spine and scarring on 26 June 2014 in the course of his employment with JL Stewart & Sons.
Mr Flook’s claim for permanent impairment compensation is declined and in accordance with s 78 of the Workplace Injury Management Act 1998 (1998 Act) he has been issued with notice dated 10 September 2021[1]. JL Stewart & Sons placed the alleged injury to Mr Flook’s cervical spine in issue. Under cover of letter dated 29 September 2021[2], JL Stewart & Sons made an offer to Mr Flook to resolve his claim for permanent impairment compensation for 14% whole person impairment resulting from injury sustained to his left upper extremity (left shoulder), right upper extremity (right shoulder) and scarring on 26 June 2014. Mr Flook rejected the offer referred.
[1] Application to Resolve a Dispute (ARD) at p 2.
[2] ARD at p 6.
ISSUES FOR DETERMINATION
The parties agree the following issues remain in dispute:
(a) whether Mr Flook sustained injury to his cervical spine on 26 June 2014 in the course of his employment with JL Stewart & Sons, and
(b) the level of impairment Mr Flook suffers as a result of the injuries he sustained on 26 June 2014 in the course of his employment with JL Stewart & Sons.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Flook’s claim for compensation came before me for teleconference on 16 December 2021. Ms Azer appeared for Mr Flook and Mr Orr appeared for JL Stewart & Sons. Mr Flook was present.
At teleconference Mr Orr sought leave under s 289A of the 1998 Act to dispute Mr Flook’s claim of frank injury to his cervical spine on 26 June 2014, with reliance placed on s 4 and s 9A of the 1987 Act. Ms Azer did not object to Mr Orr’s application and having considered the parties submissions, the evidence before the Commission and the principles set out in Mateus Zodune Pty Limited t/as Temp Cleaning Services[3]. I formed the view it was in the interests of justice to grant leave to JL Stewart & Sons to dispute Mr Flook’s claim of frank injury to his cervical spine on 26 June 2014 and the leave sought by Mr Orr was granted accordingly.
[3] [2007] NSWWCCPD227.
With Mr Flook’s claim for permanent impairment compensation unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 3 February 2022. Mr Malouf of counsel appeared for Mr Flook, instructed by Ms Azer. Mr Parker of counsel appeared for JL Stewart & Sons, instructed by Mr Orr. Ms Crombie, a representative of GIO, was present. Mr Flook was present.
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 Personal Injury Commission (the Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 27 January 2022 lodged on behalf of JL Stewart & Sons (AALD) and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statements of Mr Flook
Mr Flook provided two statements, the first is dated 20 July 2015[4] and the second is dated 16 November 2021[5].
[4] ARD at p 7.
[5] ARD at p 12.
In his initial statement, which was made just one year after the incident occurring on 26 June 2014, Mr Flook described the workplace incident occurring in the following terms:
“… I reached forward to grab a box which was at the back of the pallet. This required me to bend forward into the trailer and extend my arms forward. In effect, I was performing the same motion as one would reaching overhead. I grabbed the box and began pulling it towards me along the pallet. As I did this, I felt pain and discomfort in my left shoulder. I experienced a ‘cold sensation’ through my left shoulder and arm. I shook it off and initially thought nothing of it because it was a cold day”.
Mr Flook explained that after this incident, he made a few more deliveries and after he required the assistance of a customer to unload his goods because of the pain he was suffering in his left shoulder, he provided notice of the injury and returned his truck to the yard before ceasing work. Mr Flook said that the majority of the goods he was required to deliver weighed approximately 10kg – 15kg.
Mr Flook initially came under the general medical care of Dr Habib. He received physiotherapy treatment from Pat Lincoln at Penrith Physiotherapy and Sports Centre. Mr Flook subsequently came under the general medical care of Dr Barich, who referred him for orthopaedic review by Dr Kinzel. Due to the restricted movement and pain Mr Flook suffered in his left shoulder, Dr Kinzel recommended surgical treatment.
In this initial statement, Mr Flook made no mention of sustaining injury to his cervical spine in the workplace incident occurring on 26 June 2014 and makes no mention of symptoms in his cervical spine when describing “a number of problems and symptoms” with which he has been left since the incident.
In his subsequent statement, which was made some seven years after the incident occurring on 26 June 2014, while Mr Flook confirmed the contents of his initial statement he said he wished to “clarify certain points and to detail my subsequent progress and present symptoms”.
Relevant to complaint to Dr Barich on or about 15 March 2014 about neck, lower back and right shoulder pain, with referral for CT diagnostic imaging which “was normal”, Mr Flook relevantly said he was not with neck pain at the time of the incident. He confirmed that at the time he sustained injury on 26 June 2014, in addition to a “strange sensation in my left shoulder” he also felt “pain and tenderness around my left trapezius and around my neck”.
Mr Flook said he was most concerned about his left shoulder and arm pain and “so this is what I reported to the doctor” and this was the focus of his treatment. Mr Flook explained he came to surgical treatment of his left shoulder under the care of Dr Kinzel on 25 January 2016, 14 February 2017 and 12 June 2018. He explained he came to surgical treatment of his right shoulder on 9 October 2018.
Mr Flook said with the pain and weakness in his left shoulder persisted despite conservative treatment and numerous surgical procedures, Dr Kinzel referred him for an MRI scan of his neck “to ensure that there was no problem with my neck which may be causing my left shoulder and arm symptoms”, with Dr Kinzel subsequently informing him on review:
“…the scan to my neck shows a problem which may explain why I have continued to experience shoulder and arm pain, despite extensive treatment”.
Mr Flook said his neck and shoulders remained symptomatic and he concluded:
“I have no other explanation for my neck injury other than the work injury which occurred on 26 June 2014. I was troubled with persistent feelings of weakness in my left arm, which did not resolve after extensive treatment. I felt that all the attention was given to my left shoulder and then my right shoulder and it was only after multiple surgical procedures that it was suspected that the pain could be due to a problem with my neck”
Initial notification of injury form
The initial notification of injury form[6] described the incident reported to JL Stewart & Sons on 26 June 2014 in terms of Mr Flook having sustained injury to his left shoulder. The description of incident noted:
“During the day, began to have pain in shoulder which intensified”.
[6] Reply at p 2.
Workers injury claim form
The workers injury claim form completed on 9 July 2014[7] similarly described Mr Flook having sustained injury to his left shoulder on 26 June 2014. However, further particulars are provided regarding the circumstances of injury:
“unloading truck, extending arm to pull box from centre of tray”.
Treating medical evidence
Diagnostic imaging
[7] Reply at p 6.
A CT cervical spine dated 17 March 2014[8] concluded a normal study.
[8] ARD at p 272.
An MRI cervical spine dated 10 April 2019[9] concluded:
“Mild-moderate right C5-6 foraminal stenosis with possible contact plus/minus impingement of corresponding exiting right C6 nerve root. No nerve root compression demonstrated elsewhere”
[9] ARD at p 982.
A subsequent MRI cervical spine undertaken at Blacktown Hospital with a report which I understand to be dated 10 February 2020 variously reportedly demonstrated “foraminal narrowing predominantly at C5/6”[10] and “cervical spondylosis but no canal stenosis”[11]
Penrith Mall Medical Centre
[10] ARD at p 815.
[11] Reply a p 46.
While Mr Flook was initially under the general medical care of Dr Habib, who practised out of Penrith Mall Medical Centre and referred him for physiotherapy treatment and diagnostic imaging relevant to his left shoulder injury, Mr Flook subsequently came under the general medical care of Dr Barich, who also practised out of the same medical practice.
The medical centre’s clinical records are in evidence before the Commission[12] . An entry made by Dr Habib on 15 March 2014 included referral for a CT scan of the cervical spine and notation:
“Driving Truck Needs to Lift Weight
Neck pain and Right shoulder pain”.
[12] ARD commencing at p 149.
On review on 18 March 2014, Dr Habib relevantly noted he discussed the result of the CT scan of the cervical spine with Mr Flook.
A handwritten entry on 26 June 2014 merely noted “left shoulder injury – full notes in MD” and the progress notes of Dr Habib the same day included referral for ultrasound of the left shoulder and the following notation:
“Lifting Boxes in work
Left shoulder pain
Getting worse
O/E-Tenderness of Left Trapezius
Restricted abduction above 90”.
Following contact with an independent medical consultant for the insurer on 7 July 2014, Dr Habib declined to further treat Mr Flook due to “too much interruption from Insurance Company” and Mr Flook’s general medical care was transferred to Dr Barich.
Relevant to his left shoulder injury, Dr Barich referred Mr Flook for orthopaedic review with Dr Kinzel on 15 August 2014[13] and on 19 September 2014 Mr Flook was referred for orthopaedic review with Dr Kuo.
[13] Reply at p 20.
While Mr Flook consulted with the doctors at the medical centre on multiple occasions after sustaining injury to his left shoulder in the incident occurring on 26 June 2014 there is no mention of Mr Flook sustaining injury to his neck in the incident.
Dr Kinzel
Mr Flook came under the orthopaedic care of Dr Kinzel and his clinical records are in evidence before the Commission[14]. It is evident from Dr Kinzel’s reporting between 20 August 2014 (when Mr Flook was first reviewed by Dr Kinzel) and 5 July 2017 (when he was initially discharged from his care following surgery) that Dr Kinzel recorded no complaint of Mr Flook suffering symptoms in his neck.
[14] ARD commencing at p 816.
Mr Flook returned to Dr Kinzel for review on 7 March 2018 with complaint of bilateral shoulder symptoms. Dr Kinzel considered Mr Flook remained difficult to treat “especially taking his pain consideration”. On 16 May 2018 Dr Kinzel reported Mr Flook’s presentation “is of concern” and Mr Flook came to further surgical treatment of his left shoulder under her care, with recovery complicated by infection. On 19 December 2018 Dr Kinzel described Mr Flook’s left shoulder as “giving him grief” and on 3 April 2019 Dr Kinzel reported she had arranged for Mr Flook to undertake an MRI scan of his cervical spine “to ensure there is no overlapping pathology to be causing the posterior shoulder pain”. On review of the MRI cervical span dated 10 April 2019 Dr Kinzel wrote:
“With regard to his cervical spine there are signs of impingement of the exiting right C6 nerve root which would explain the pain in the posterior aspect of his shoulder and neck”.
Also following review of the MRI cervical spine scan, under cover of letter dated 7 May 2019 Dr Kinzel referred Mr Flook to Dr Hsu, spinal surgeon, for review. She wrote at that time:
“I would be pleased if you could review Matthew Flook for opinion and management of Foraminal Stenosis Right C5/6 of the Cervical Spine with possible contact plus impingement of corresponding exiting Right C6 nerve root as shown in a recent MRI dated April.
Matthew has been a patient of mine since 2014 when he injured his arm at work whilst lifting out some boxes from a shelving unit.
Since that time Matthew has undergone surgeries on both the left and right shoulders with the latest being 7 May 2019”.
On 3 June 2019, Dr Kinzel reported Mr Flook “still has pain arising from his neck” and on 5 February 2020 she relevantly wrote:
“Matthew was seen again today. As you are aware his shoulder post-surgery was initially good but he still has neck problems for which he is having recurrent injections. Matthew states that since the injection his shoulder have deteriorated. He now has problems elevating them further than 90 degrees. He has pain at night.
On examination today he was able to anteflex to 70 degrees before pain commenced. This was passively correctable but causes impingement-type pain. The pain is originating from his shoulder but he also complains of neck symptoms.
I am unclear where these new symptoms are coming from despite him having a fairly good recovery post-surgery. Matthew himself relates it directly to his neck. To explore any new shoulder pathology I have requested an MRI scans of both shoulders and I would like to review him once these are available”.
On 24 July 2019 Dr Kinzel noted the injection therapy Mr Flook was undergoing for his neck symptoms “temporarily eased symptoms affecting both shoulders” and said as far as she understood “Dr Hsu is trying to determine exactly where the pain is arising from”. Dr Kinzel planned to review Mr Flook in three months “to ensure he has responded to cervical spine treatment”. On 19 February 2020 she wrote:
“I do believe that most of Matthew’s symptoms are probably originating from his neck. I have therefore requested an injection into the subacromial space to help him with the bursitis but I hope that further review with his neurosurgeon is of benefit”.
Also of relevance in relation to Mr Flook’s claim for compensation is that when asked by the insurer as to whether Mr Flook had reached maximum medical improvement, Dr Kinzel responded on 24 July 2019:
“Matthew has not reached maximum medical improvement. He remains a difficult patient. He is still recovering from shoulder surgery from which he is continuously improving. Unfortunately he has an overlying cervical spine problem for which he is undergoing a series of injections. Depending on this result hopefully maximum medical improvement will be achieved within the next 6 – 12 months. Currently he I having cortisone injections under the care of Dr Hsu”.
Dr Kuo
Relevant to his left shoulder injury, Mr Flook was orthopaedically reviewed by Dr Kuo and his clinical records are in evidence before the Commission[15]. Dr Kuo reported on 9 October 2014 that Mr Flook presented with left shoulder pain and following clinical examination and review of the MRI scan on 13 August 2014 Dr Kuo wrote:
“Matthew demonstrates persistent left shoulder pain which I feel is due to a combination of factors including an anterosuperior labral tear, AC joint and rotator cuff disease”..
[15] ARD at p 935.
Dr Kuo also reported on that occasion:
“I have given him a cortisone injection into the left subacromial space to see if we can try and settle some of his symptoms but I would tend to agree with his original surgeon that surgery may be of benefit”.
On review on 21 October 2014, Dr Kuo reported that the injection therapy provided no lasting benefit and based on Mr Flook’s ongoing symptoms, he too recommended surgical treatment.
Dr Paterson
Mr Flook came under the care of Dr Paterson for pain management and a number of his reports are in evidence before the Commission[16]. It is evident from Dr Paterson’s reporting between 17 August 2016 and 21 June 2017 that Mr Flook was significantly troubled by pain and limitation of range of motion of his left shoulder.
[16] ARD at p 54 and commencing at p 845.
In his initial report dated 17 August 2016 Dr Paterson described the circumstances of injury occurring on 26 June 2014 and sequelae in the following terms:
“Mr Flook was working as a truck driver in June 2014 when he was unloading a truck and subsequently felt increasing pain in his shoulders and continued working in spite of the discomfort. Thereafter by the end of the shift he was almost unable to move his left arm. He subsequently underwent an MRI of the left shoulder which showed the presence of two SLAP tears of the left rotator cuff and underwent surgery here at Norwest where he underwent biceps tendonesis and SLAP repair. In spite of this and physiotherapy unfortunately his pain has not responded and he says if anything his pain is worse”.
On examination on that occasion Dr Paterson noted “[T]here was generalised tenderness from the neck over the left side of the trapezius muscle over the scapular”.
Dr Ragavan
Mr Flook came under the care of Dr Ragavan, rehabilitation consultant, and his clinical records are in evidence before the Commission[17]. Dr Ragavan noted on 16 April 2018 that despite intensive treatment for the left shoulder injury Mr Flook had sustained on 26 June 2014:
“Unfortunately he has been having a chronic pain syndrome with restricted range of movement which, on examination today shows an abduction limited to 85 degrees associated with pain. The pain radiates to the lateral part of the left side of the neck and further down the left upper limb but without any specific paraesthesia”.
New South Wales Spine Specialists
[17] ARD commencing at p 940.
Mr Flook came under the orthopaedic care of Dr Hsu and Dr Singh, both of who are spine specialists, and their clinical records are in evidence before the Commission[18]. Mr Flook was initially reviewed by Dr Hsu on 12 June 2019 relevant to his “neck pain and upper limb symptoms”, with Dr Hsu recording Mr Flook had been experiencing both neck pain and arm pain since the workplace incident and providing assessment in the following terms:
“I had a long discussion today with Mr Flook regarding the radiographic findings and also the clinical findings. Mr Flook’s neck pain and upper limb symptoms are most likely related to the C3-4, C5-6 and C6-7 disc bulging, as seen on the MRI scan. I have discussed with him the non operative treatment options. His non-operative option would be to continue with pain medication, anti-inflammatories and trial a Cortisone injection. I have arranged for him to trial a right sided C5-6 and C6-7 foraminal injection as both a diagnostic and therapeutic intervention. I plan to review him 2-3 weeks after the injections”.
[18] ARD at p 966.
On review on 17 July 2019, Dr Hsu reported limited relief from the injection therapy Mr Flook had undertaken at the C5-6 and C6-7 levels and Dr Hsu recommended Mr Flook proceed with C3-4 and C4-5 injections, of which he said:
“Hopefully we will obtain further diagnostic information regarding the origin of some of Matthews neck and shoulder pain”.
Mr Flook was reviewed by Dr Singh on 19 September 2019, with Dr Singh reporting Mr Flook “returns several months after seeing Dr Brian Hsu for cervical pain”. Dr Singh noted that while Mr Flook had had limited relief from right sided injection therapy at C5-6 and C6-7 “injections to the other levels did not give him any relief of symptoms”. Dr Singh noted “similar symptoms on the left side” and recommended injection therapy on the left side. He recommended too that “in view of the fresh symptoms” a new MRI scan of the cervical spine be undertaken. On review on 5 February 2020 Dr Singh reported Mr Flook’s complaints included ongoing symptoms of neck and arm pain and he made arrangement for an updated scan of the cervical spine.
On review on 28 February 2020 Dr Singh described Mr Flook as suffering persistent neck and scapular pain. He noted an MRI scan from Blacktown Hospital reported foraminal narrowing at C5/6. Dr Singh reported Mr Flook as requesting surgical treatment, which Dr Singh described as “reasonable” in the context of Mr Flook having had symptoms and “responsible conservative treatment for quite some time”. Dr Singh advised Dr Barich he would request insurer approval for surgical treatment in the nature of an anterior cervical decompression and fusion at C5/6 and a copy of his report and an estimate of his fees appears to have been forwarded to the GIO for attention.
Independent medical evidence
Dr Muratore
Mr Flook was assessed on 9 July 2014 by Dr Muratore, sports physician, in his capacity as independent medical examiner, with Dr Muratore providing a report dated the same day[19]. Dr Muratore reported a history of injury occurring in the following terms:
“On 26 June 2014 Mr Flook developed left shoulder pain and at first could not recall the mechanism of injury but stated that about 3.00am while delivering to Donut King at Narellan he had to reach into his truck to obtain trays weighing approximately15 kg when he experienced a ‘crunching’ sensation in his left shoulder and then developed an ache”.
[19] AALD at p 22.
Dr Muratore recorded no complaint of neck symptoms and relevant to clinical examination of the cervical spine Dr Muratore reported:
“He has no neck pain.
Examination of his neck shows normal posture. He reports tenderness at the trapezius bilaterally left worse than right with no active trigger points. He has a full range of movement of the cervical spine with pain in rotation to the left. Spurling’s test was negative bilaterally. There was no wasting of any upper limb muscle group. He has a negative brachial plexus tension test on the right. The brachial plexus tension on the left reproduces a paradoxical response in that reduction of neural tension by flexion of the elbow causes an increase in shoulder pain. This cannot be explained on a purely organic basis”.
Dr Muratore’s supplementary report dated 2 September 2014[20] is relevant only to treatment of Mr Flook’s left shoulder injury.
Dr Kafataris
[20] Reply at p 24.
Dr Kafataris provided a file review report dated 12 July 2014[21] relevant to Mr Flook’s capacity for work and need for medical and related treatment for his left shoulder injury. Dr Kafataris noted at that time Mr Flook’s general medical care was to be transferred from Dr Habib.
Dr Duckworth
[21] Reply at p 18.
Mr Flook was assessed on 2 September 2014 by Dr Duckworth, shoulder and elbow surgeon, in his capacity as independent examiner, with Dr Duckworth providing a report dated the same day[22]. Dr Duckworth reported a history of injury occurring in the following terms:
“He was reaching into the back of his truck and noticed a sharp pain in the top of his left shoulder. He was not reaching overhead … Apparently at the time he was lifting between 10-20kg. Ever since he has had an ongoing problem affecting his shoulder”.
[22] ARD at p 36.
On this occasion Dr Duckworth noted of Mr Flook’s complaint on presentation:
“His main complaint today was pain superiorly and anteriorly around the shoulder. He cannot lift his arm and has problems driving. His arm feels weak and he has a constant pain”.
Following clinical examination and review of the MRI scan left shoulder which reportedly demonstrated a SLAP lesion and anterior labral tear which Dr Duckworth said “appeared to be chronic”, Dr Duckworth noted Mr Flook had great difficulty lifting his arm and had pain with any form of loading of his arm and weakness. Dr Duckworth provided opinion the clinical signs did not correlate with the MRI scan diagnosis. While Dr Duckworth accepted Mr Flook’s left shoulder symptoms may result from the incident occurring on 26 June 2014, he did not accept the symptoms related to the SLAP lesion and anterior labral tear demonstrated by the MRI scan. Dr Duckworth described Mr Flook as suffering left shoulder pain that “was diffuse and of an unusual nature” and Dr Duckworth was strident in recommendation Mr Flook be referred to a “shoulder and neck rehabilitation specialist”. He made specific recommendation of assessment by Dr Seamus Dalton “to see if he can help Mr Flook with his current symptoms”. Dr Duckworth said he would be reluctant to offer Mr Flook surgical treatment, but rather recommended “a physiotherapy program and time”.
Dr Assem
Mr Flook was initially assessed on 14 August 2015 by Dr Assem, rehabilitation specialist, in his capacity as independent examiner, with Dr Assem providing a report dated the same day[23]. Dr Assem recorded no complaint by Mr Flook of neck symptoms and relevant to clinical examination of the cervical spine, Dr Assem reported:
“There was no tenderness. He demonstrated a full pain free range of cervical movement”.
[23] AAALD at p 40.
Mr Flook was re-assessed on 19 May 2021 by Dr Assem with Dr Assem providing a report dated the same day[24]. Dr Assem reported a history of injury occurring in the following terms, such terms being consistent with the history of injury previously reported to Dr Assem:
“On 26 June 2014, Mr Flook was reaching forward into the back of his truck in order to grab a box, estimated to weigh 15kg from a pallet when he felt pain and discomfort in his left shoulder, followed by a ‘cold sensation’”.
[24] ARD at p 16.
Dr Assem again noted that Mr Flook had initially come under the general medical care of Dr Habib and subsequently came under the general medical care of Dr Barich. He noted Mr Flook had been orthopaedically assessed by Dr Kuo and also by Dr Kinzel under whose care he came for surgical treatment of both shoulders. Dr Assem noted Mr Flook came under the care of Dr Paterson for pain management. Dr Assem noted Mr Flook came under the care of Dr Singh relevant to his persistent neck symptoms.
Dr Assem took a history that included Mr Flook receiving injection therapy under the care of Dr Singh and Dr Singh subsequently recommending “an anterior cervical decompression and fusion at the C5-6 level”. Dr Assem reported:
“Mr Flook informed that he is reluctant to proceed with any further surgery. …
He states that he has always experienced neck pain but his treating doctor was predominantly concerned about his shoulder complaints. His neck symptoms later increased in intensity and was accompanied by weakness in his grip strength, causing him to drop items. Dr Singh gave him a cortisone injection into the cervical spine that made his symptoms worse.
Mr Flook experiences constant neck discomfort radiating to the upper trapezii and both shoulders. There is sometimes numbness and weakness in his hands”.
Following clinical examination and review of the report of the MRI cervical spine dated 10 April 2019, Dr Assem’s diagnosis of injury included:
“Chronic neck pain and stiffness secondary to broad-based disc pathology associated with unconvertable osteophytes and possible compression of the exiting right C6 nerve root”.
In response to questioning specific to Mr Flook’s cervical spine injury, Dr Assem said:
“Mr Flook informed me that he experienced left sided neck pain and weakness in his left hand since the date of the injury. Although he reported it to his treating doctors, the initial treatment was focussed on his left shoulder complaints and later, right shoulder pain.
He was reviewed by Dr Patterson, Neurosurgeon on 17 August 2016 and noted to have generalised tenderness over his neck and left upper trapezius to the scapula. Dr Ragavan, Rehabilitation Consultant examined him on 16 April 2018 and noted that his shoulder complaints were radiating to the left side of his neck.
I have therefore accepted that he probably strained his neck while trying to grab the box weighing 15kg on 26 June 2014. He has mild to moderate degenerative changes with possible impingement of the exiting right C6 nerve root that has gradually progressed with time, causing increasing neck pain an stiffness. On the balance of probabilities, his employment was a substantial contributing factor to his cervical spine condition”.
In a supplementary report dated 1 October 2021[25] Dr Assem provided comment relevant to Dr Muratore’s report dated 9 July 2014, in which Dr Muratore had not reported a history of neck pain and noted a full range of cervical movements. Relevant to his previously expressed acceptance Mr Flook sustained an injury to his neck on 26 June 2014, Dr Assem explained:
“According to the information provided and assuming that it was accurate and correct, Mr Flook experienced neck discomfort at the time of the subject injury which is not unusual given the mechanism of injury described. In addition, pain nerve endings are located in the various ligaments and muscles in the neck, as well as in the facet and uncovertebral joints and the outer layer of the disc (annulus fibrosis). When these structures are irritated, strained or inflamed, pain is felt in the back of the neck, and may spread toward the shoulders. As a result, it is sometimes difficult to differentiate if the symptoms are primarily involving the shoulders or referred from the cervical spine”.
Dr Rimmer
[25] ARD at p 27.
Mr Flook was initially orthopaedically assessed on 29 June 2016 by Dr Rimmer in his capacity as independent medical examiner, with Dr Rimmer providing a report dated the same day[26]. As to the reported circumstances of injury and sequelae, Dr Rimmer reported:
“He describes on this particular day he was required to deliver materials to a Donut King store. There was no specific incident however during the course of this activity he noticed the gradual onset of pain in his left shoulder. He alleges it increased in both frequency and severity causing him to report it to management. He sought medical attention through his General Practitioner. He was assigned off work. He was ultimately referred to Dr Kinzel (Orthopaedic Surgeon). This resulted in left shoulder arthroscopic surgery on 25 January 2016. He had post-operative physiotherapy. When asked the outcome of his surgery he stated ‘no good’. He has had Cortisone injections since into the left shoulder with no beneficial effect. He alleges Dr Kinzel wants to repeat surgery to his left shoulder”.
[26] ARD at p 32.
Without explanation, but in response to specific questioning, Dr Rimmer provided opinion Mr Flook’s employment with JL Stewart & Sons was not a substantial contributing factor to the injury he sustained to his left shoulder. There is no reported complaint of injury to Mr Flook’s neck during assessment and no examination of his cervical spine by Dr Rimmer.
Mr Flook was reassessed by Dr Rimmer on 4 August 2021 with Dr Rimmer providing a report dated 5 August 2021[27]. Dr Rimmer noted Mr Flook had come to further surgical treatment in the nature of a left rotator cuff repair and resection of the AC joint and left shoulder arthroscopic surgery, with Mr Flook telling him this treatment was “of no benefit”. Clinical examination included examination of the cervical spine and is described as a “normal examination”. Review of the MRI cervical spine dated 10 February 2020 reportedly concluded “cervical spondylosis but no canal stenosis”. In a supplementary report dated 24 August 2021[28]Dr Rimmer said:
“I do not believe Mr Flook has suffered an injury to the cervical spine at any time during his employment and/or consequential injury to his left shoulder injury.
This is determined by a combination of the history, ie. no mention of cervical spine symptoms on two assessment by Mr Flook and the clinical examination of the cervical spine, the latter being completely normal on two occasions/assessments”.
Dr Tang
[27] Reply at p 46.
[28] Reply at p 53.
Mr Flook was assessed on 13 October 2016 by Dr Tang in his capacity as independent medical consultant with Dr Tang providing a report dated 15 October 2016[29]. At the time of assessment Dr Tang took a history of the Mr Flook’s left shoulder becoming symptomatic on 26 June 2014 during the course of his work day, and consequentially consulting with his general practitioner. Despite diagnostic imaging, physiotherapy treatment and surgical treatment under the orthopaedic care of Dr Kinzel, Mr Flook’s left shoulder remained problematic and he had also come under the care of Dr Patterson for pain management. Following clinical examination of both shoulders, but no examination of Mr Flook’s neck, Dr Tang spoke with Mr Flook’s general practitioner, Dr Barich, who described Mr Flook as “progressing slowly”.
Submissions
[29] Reply at p 39.
Mr Malouf and Mr Parker made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.
Determination
Injury
While JL Stewart & Sons do not dispute Mr Flook sustained injury to his left shoulder and right shoulder as a result of the workplace incident occurring on 26 June 2014, JL Stewart & Sons disputes he sustained injury to his cervical spine in the incident referred.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment and s 9A of the 1987 Act relevantly provides that no compensation is payable under the 1987 Act in respect of an injury unless the employment concerned was a substantial contributing factor to injury. Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree to be decided after a consideration of all the evidence[30].
[30] Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; McMahon v Lagana [2004] NSWCA 164.
Mr Flook has the onus of proving he sustained injury to his cervical spine in the incident and this is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[31] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[31] [2008] NSWCA 246 (Nguyen).
Relevant to this issue of causation of the injury Mr Flook alleges he has sustained to his cervical spine, it is instructive to note that in Kooragang v Cement Pty Ltd v Bates[32] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a 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 commonsense 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.”
[32] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Diagnostic imaging of Mr Flook’s cervical spine prior to the incident occurring on 26 June 2014 concluded a normal study and Mr Flook said that at the time of the incident his neck was asymptomatic. Of significance in this particular matter is there is no contemporaneous mention of Mr Flook having sustained injury to his neck in the incident and despite multiple attendances on his general practitioners after the incident there appears to be no mention of Mr Flook experiencing a problem with his neck until Dr Paterson, under whose he came for pain management of his left shoulder injury, reported on 17 August 2016, some two years’ after the incident, that on clinical examination there was “generalised tenderness from the neck over the left side of the trapezius muscle over the scapular”. Just under two years’ later Dr Ragavan, under whose care Mr Flook came for rehabilitation of his left shoulder injury, reported on 16 April 2018 that on clinical examination Mr Flook experienced pain on abduction, which included pain radiating to the lateral part of the left side of the neck. Dr Kinzel under whose orthopaedic care Mr Flook has been since 20 August 2014, one year later reviewed an MRI cervical spine dated 10 April 2019, following referral on 3 April 2019 “to ensure there is no overlapping pathology to be causing the posterior shoulder pain”, which demonstrated foraminal narrowing with possible impingement. Mr Flook was then referred for specialist spinal care, coming under the care of Dr Hsu on 12 June 2019 and Dr Singh on 19 September 2019, with Dr Hsu reporting Mr Flook experiencing both neck and arm pain since the incident and Dr Singh ultimately recommending surgical treatment following review of an updated MRI scan, which again reported foraminal narrowing, with a request for insurer approval being forwarded to the GIO for attention.
While it is true that in his statement made just one year after the incident Mr Flook made no complaint about his neck, he described feeling pain and discomfort in his left shoulder together with a “cold sensation”. In his statement made some seven years after the incident, Mr Flook said that in addition to this sensation he also felt “pain and tenderness around my left trapezius and around my neck”. While there can be a delay in reporting injury to a treating practitioner that can be overcome by a patient, I accept I must be cautious of accepting the history of injury provided by Mr Flook in his statement given several years after the incident occurring on 26 June 2014[33] and I also accept I must be cautious of accepting the history of injury provided by Mr Flook where contemporaneous evidence is lacking[34]. However, I am mindful that in Malec v JC Hutton Pty Limited[35] Deane, Gaudron and McHugh JJ said:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred”.
[33] Watson v Foxman & Ors (1995) 49 NSWLR 315.
[34] Department of Education v Ireland (2008) NSWWCCPD 134.
[35] [1990] HCA 20; (1990) 169 CLR 638.
An absence of identification of injury to his neck in the initial notification of injury form and the workers injury claim form coupled with an absence of documentary evidence to support complaint of neck injury sustained in the incident (either contemporaneous to the incident or at least during the period between the incident and when Dr Paterson first mentioned a “generalised tenderness from the neck over the left side of the trapezius muscle over the scapular” in his report dated 17 August 2016) is a concerning omission in Mr Flook’s case. Particularly so as Dr Habib, Dr Barich, Dr Kinzel and Dr Kuo all provided treatment to Mr Flook for the injury he sustained to his left shoulder during this time and he was also assessed by Dr Muratore, Dr Duckworth, Dr Assem and Dr Rimmer in their capacities as independent medical examiners during this time.
However, it is evident Mr Flook has been significantly troubled by his left shoulder since the incident, with Dr Duckworth, who specialises in shoulder and elbow surgery, describing Mr Flook’s left shoulder pain in his report dated 2 September 2014, which is only a matter of months after the incident, as “diffuse and of an unusual nature” and strident in opinion Mr Flook should be referred to a shoulder a neck rehabilitation specialist for assessment, which unfortunately did not occur. Mr Flook’s long term treating orthopaedic surgeon, Dr Kinzel, some years later on 7 March 2018, described Mr Flook’s injury as difficult to treat.
Despite considerable intensive treatment, which included surgical treatment on a number of occasions, Mr Flook’s left shoulder remained symptomatic and Mr Flook’s neck became significantly symptomatic. On review on 24 July 2019, Dr Kinzel noted the injection therapy Mr Flook was undertaking for his neck symptoms had provided temporary relief and on review on 28 February 2020 Dr Singh recommended surgical treatment in the nature of an anterior cervical decompression and fusion at C5/6 for which he sought insurer approval.
While it may be that in his report dated 19 May 2021, in which Dr Assem provided support for Mr Flook’s allegation of injury sustained to his neck on 26 June 2014, Dr Assem provided a history that Mr Flook had experienced neck pain since the incident, which is not consistent with more contemporaneous histories provided by Mr Flook nor contemporaneous documents, it must be borne in mind Dr Assem initially had the opportunity to assess Mr Flook on 14 August 2015 (at which time there was no complaint of neck pain made by Mr Flook and Dr Assem’s clinical examination revealed no tenderness and a full pain free range of cervical movement) and there is nothing to suggest Dr Assem did not take his earlier assessment into account when providing his opinion as to the cause of Mr Flook’s cervical spine injury.
Following a review of the evidence as a whole and careful consideration of counsels’ submissions, I accept submission Mr Flook made early complaint of symptoms that may have been neurological in nature, and with initial focus on his left shoulder injury and significant intensive treatment (including surgical treatment on three occasions) without resolution of his left shoulder symptoms, there has been delayed diagnosis of injury sustained to Mr Flook’s neck in the incident. I accept Mr Flook has discharged the onus of proof required of him and I am satisfied Mr Flook sustained injury to his cervical spine in the incident occurring on 26 June 2014 and that his employment with JL Stewart & Sons was a substantial contributing factor to injury, being opinion provided by Dr Assem.
I prefer the opinion provided by Dr Assem to that provided by Dr Rimmer as Dr Rimmer reported on 5 August 2021 he reviewed an MRI cervical spine dated 10 February 2020 which reportedly concluded “cervical spondylosis but no canal stenosis”, being conclusion which neither accords with Dr Singh’s reporting on 28 February 2020 that the MRI scan of the cervical spine referred concluded “foraminal narrowing at C5/6” nor the earlier MRI cervical spine dated 10 April 2019 which also concluded C5/6 stenosis. Unfortunately this MRI scan report dated 10 February 2020 is not before the Commission, despite a copy being available to Dr Rimmer for his review and comment.
Permanent impairment
JL Stewart & Sons do not dispute Mr Flook sustained injury to his left shoulder and right shoulder as a result of the workplace incident occurring on 26 June 2014, and I have determined that Mr Flook sustained injury to his cervical spine in the incident occurring on 26 June 2014 and his employment with JL Stewart & Sons was a substantial contributing factor to injury.
It is appropriate Mr Flook’s claim for permanent impairment compensation resulting from injury sustained to his left upper extremity (left shoulder), right upper extremity (right shoulder), cervical spine and scarring, as agreed or determined by me, with date of injury of 26 June 2014 be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD dated 27 January 2022 lodged on behalf of JL Stewart & Sons and attached documents.
SUMMARY
Mr Flook sustained injury to his left shoulder and right shoulder as a result of the workplace incident occurring on 26 June 2014 and I have determined Mr Flook sustained injury to his neck as a result of the workplace incident occurring on 26 June 2014 and that his employment with JL Stewart & Sons was a substantial contributing factor to injury.
It is appropriate Mr Flook’s claim for permanent impairment compensation resulting from injury sustained to his left upper extremity (left shoulder), right upper extremity (right shoulder), cervical spine and scarring, as agreed or determined by me, with date of injury of 26 June 2014 be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late documents dated 27 January 2022 lodged on behalf of JL Stewart & Sons and attached documents
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