Harrigan v Traffic Logistics Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harrigan v Traffic Logistics Pty Ltd [2023] NSWPIC 433
APPLICANT:	William John Harrigan
RESPONDENT:	Traffic Logistics Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	30 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and medical expenses for injury to cervical spine, thoracic spine, lumbar spine, fracture of a rib, and psychological injury in a motor accident in the course of employment; respondent concedes injury to cervical spine (but claims that the effects of that injury have resolved) and otherwise disputes injury to the other body parts; reference to North Coast Area Health Service v Felstead on the definition of a personal injury pursuant to section; Held – the worker sustained an injury to his thoracic spine and continues to suffer the effects of injury to the cervical spine and thoracic spine; the worker sustained an injury to the right rib but the effects of that injury have now resolved; the worker did not sustain an injury to the lumbar spine or a psychological injury; award of weekly payments of compensation for partial incapacity for work and the payment of medical expenses for treatment of the injury to the cervical spine and thoracic spine.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his thoracic spine and a fracture of his right eleventh rib in the course of his employment with the respondent on 16 October 2020. 2. The applicant did not sustain an injury to his lumbar spine or a consequential psychological injury in the course of his employment with the respondent on 16 October 2020. 3. The applicant continues to suffer the effects of the injury to his cervical spine and thoracic spine which were sustained in the course of her employment with the respondent on 16 October 2020. 4. The applicant no longer suffers the effects of the injury to his right eleventh rib. 5. The applicant has had a partial incapacity for work since 12 November 2022 as a result of the injury sustained to his cervical spine and thoracic spine. The Commission orders: 6. Award for the respondent for the claims of injury to the lumbar spine and a consequential psychological injury. 7. The respondent is to pay the applicant weekly payments of compensation at the rate of $1,148.70 per week from 12 November 2022 to date and continuing pursuant to s 37 (3) of the Workers Compensation Act 1987. 8. The respondent is to pay the applicant’s costs of reasonably necessary medical treatment for the injury to his cervical spine and thoracic spine.

STATEMENT OF REASONS

BACKGROUND

William Harrigan, the applicant in these proceedings, was working in the course of his employment as a traffic controller with the respondent, Traffic Logistics Pty Ltd, on 16 October 2020 when the Truck Mounted Attenuator (TMA) which he was driving was struck from behind by another vehicle.
Mr Harrigan claims that he sustained injury to his cervical spine, thoracic spine, lumbar spine, his left Achilles tendon, a fracture of a rib, and a consequential psychological injury of depression and post-traumatic stress disorder.
The respondent has accepted liability for the injury to the cervical spine, although ongoing liability for this injury was disputed in a notice dated 20 October 2022 on the grounds that the effects of the injury to that body part have ceased.
The respondent disputes liability for the claims of injury to the thoracic spine, lumbar spine, a fracture of a rib, and a consequential psychological injury of depression and post-traumatic stress disorder.
Mr Harrigan states that he was “off work completely for a period of time” following the motor vehicle accident on 16 October 2020 and received weekly payments of compensation. Mr Harrigan states that he returned to work on reduced hours and gradually increased those hours but remained on restricted suitable duties. He states that he kept on working with the respondent until “about June 2020 when I simply could not do it anymore”. Mr Dodd on behalf of Mr Harrigan advised that the date referred to by Mr Harrigan should be August 2022.
Weekly payments of compensation were made to Mr Harrigan until 11 November 2022. Mr Harrigan makes a claim for weekly payments of compensation from 12 November 2022 and a general order that the respondent pay his reasonably necessary medical expenses for treatment as a result of the injury on 16 October 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained an injury to his thoracic spine, lumbar spine and/or a fracture to the rib as a result of the motor accident on 16 October 2020 (s 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b)    whether the applicant sustained a consequential psychological injury as a result of the motor accident on 16 October 2020 (ss 4 and 11A (3) of the 1987 Act);
(c)    whether the applicant continues to suffer the effects of the injury to his cervical spine and any other body part found to be injured as a result of the motor accident on 16 October 2020;
(d)    the extent of any incapacity suffered by the applicant as a result of an injury sustained on 16 October 2020 (ss 32A, 33 and 37 of the 1987 Act), and
(e)    the claim for reasonably necessary medical expenses for treatment for the injury sustained on 16 October 2020 (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 24 August 2023. 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.
Mr Dodd appeared for the applicant, instructed by Mr Macri. Ms Goodman appeared for the respondent, instructed by Mr Patterson.
The hearing was conducted by video and was recorded.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $2,010.85.
The Application to Resolve a Dispute (ARD) was amended by consent to add a claim of injury to the thoracic spine.
Mr Dodd concedes that the effects of any injury to the left Achilles tendon have resolved.
The claim in the ARD for an order pursuant to s 60 (5) of the 1987 Act was amended to claim a general order that the respondent pay is reasonably necessary medical expenses for treatment as a result of the injury on 16 October 2020.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 17 July 2023, and
(d)    Application to Admit Late Documents filed by the respondent on 18 August 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

Whether the applicant sustained an injury to his lumbar spine, thoracic spine and/or a fracture to the rib in the motor accident on 16 October 2020

The applicant’s evidence

Mr Harrigan has provided a statement dated 3 May 2023. He states that at the time the accident occurred he sustained the following injuries:
(a)    fractured right 11^th rib;
(b)    injury to my neck;
(c)    injury to my middle back;
(d)    injury to my lower back;
(e)    injury to my left Achilles tendon on my ankle, and
(f)    consequential psychiatric injury – major depression and post-traumatic stress disorder.
Mr Harrigan does not provide any further details in his statement of what he experienced in those parts of his body immediately following the motor vehicle accident and the days thereafter. He states that he initially saw his general practitioner, Dr De Havilland, after the subject accident.

The medical evidence

There are no clinical records in evidence from Dr De Havilland. Nor are there any Certificates of Capacity in evidence for the days and weeks following the motor vehicle accident. Dr De Havilland has provided a report dated 8 March 2023 in which he writes:
“I, Dr Quentin De Havilland, saw him at Dapto Healthcare, the next day on 17/10/20. At that consult, he stated his pain was worse in the neck and thoracic with associated stiffness. He had difficulty sleeping the previous night because of the flashbacks about the event.”
“Examination of the thoracic spine showed no bony tenderness or tenderness of the thoracic erector spinal muscles. Forward flexion of the thoracic spine was reduced to 45 degrees”.
Dr De Havilland writes that Mr Harrigan had reported no pain immediately following the event when he went to assist the other driver, but that he felt pain in the cervical spine region when he got back into his vehicle. Dr De Havilland writes: “Upon return to his truck, he began to experience pain in the neck and the next day in the thoracic back region as well”.
The first medical report produced following the motor vehicle accident which is in evidence is a report from Dr Wijetunga, occupational physician, dated 24 September 2021, which was provided at the request of the insurer of the respondent. The report is based upon an assessment conducted via telehealth.
Dr Wijetunga records that Mr Harrigan experienced neck stiffness over a couple of days following the motor accident. He records that the pain increased “in three discrete areas across the lower cervical, upper thoracic, mid thoracic and upper lumbar”.
Dr Wijetunga concludes that the accident described by Mr Harrigan occurred with strong force resulting in forward flexion and hyperextension of the neck, thoracic and lumbar spine. He opines that the most likely diagnosis is a musculoligamentous strain of the spine.
There is a report Dr Jaeger, neurosurgeon, dated 14 January 2022, whom Mr Harrigan attended for treatment. Dr Jaeger records that Mr Harrigan described lower back pain of fluctuating intensity since the motor accident.
There are four medico-legal reports which are in evidence which I will review in chronological order.
Dr John Bentivoglio, orthopaedic surgeon, has provided a report dated 26 August 2022.
Dr Bentivoglio records that Mr Harrigan reported an injury to his neck, left heel and a fractured rib on the right side as a result of the motor accident on 16 October 2020.
Dr Bentivoglio records that Mr Harrigan had problems with his neck and back in the past and had occasional osteopathic treatment for these parts of his body.
Dr Bentivoglio opines that Mr Harrigan aggravated pre-existing degenerative changes in his cervical and thoracic spine region as a result of the motor accident. He also writes:
“With his low back, I could not find any investigation done of his lumbar spine but from the documentation it would appear that it is more his thoracic spine region in the motor vehicle accident.”
Dr Ho, orthopaedic surgeon, has provided a report at the request of the respondent dated 29 August 2022.
Dr Ho records that Mr Harrigan noticed pain in the neck and then gradually in the low back and mid thoracic region following the impact from the motor vehicle collision on 16 October 2020.
Dr Ho opines that Mr Harrigan was suffering from some musculoligamentous strain mainly in the cervical spine, but also complained of pain in the whole spine from the motor accident.
In a supplementary report dated 18 October 2022, Dr Ho is asked if the reported mechanism of injury on 16 October 2020 was consistent with each of the alleged injuries. Dr Ho writes the impact in the collision was not that significant because Mr Harrigan was able to release himself without any help and then opines:
“Usually, I would expect some injury to the cervical spine from the impact but not all the injuries that he has reported in the mid thoracic, low back and Achilles tendon are necessarily related to that injury on 16 October 2020”.
Dr Ho concludes that he does not believe the lumbar spine complaint is a result of the incident on 16 October 2020.
Dr Mastroianni, consultant occupational physician, has provided a report at the request of the lawyers for Mr Harrigan dated 1 December 2022.
Dr Mastroianni records that Mr Harrigan was in shock following the accident and that his neck was sore and later he also felt lower back pain.
Dr Mastroianni finds restricted neck and back movements on examination. He makes a clinical diagnosis of cervical disc lesion and mechanical back problem as a result of the motor accident. He opines that the mechanical back problem is in all probability is related to lumbosacral disc pathology.
Dr Lee, occupational physician, has provided a report dated 9 May 2023 for the compulsory third party insurer of the motor vehicle at fault in the collision.
Dr Lee records that the vehicle that Mr Harrigan was sitting in was struck at high speed by a passing motorist, and that Mr Harrigan was forced forwards and backwards. He records that Mr Harrigan complained of soreness in the neck and upper lumbar spine region.
Dr Lee concludes that Mr Harrigan suffered a musculoligamentous injury to his cervical and thoracic spine in the motor accident, but he does not consider that Mr Harrigan injured his lumbosacral spine.
A report from a bone scan dated 21 September 2021 reports a subacute fracture of the right eleventh rib posteriorly.
Dr De Havilland writes in his report dated 8 March 2023 that this finding on the bone scan is consistent with the original accident and the associated muscle activation of the thoracic spinal muscle causing pain and reduced range of movement.
Dr Lee is the only one of the four medicolegal experts who have provided reports who considers whether the fracture of the right rib has been caused by the motor accident. Dr Lee states that he has not reviewed the actual images of the bone scan but the fracture is reported to be posteriorly and appears to be in the approximate region of Mr Harrigan’s complaints. Dr Lee concludes on the balance of probabilities the fracture of the rib occurred at the time of the accident, but the fracture has resolved.

Determination

The meaning of a personal injury was considered by Roche DP 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), where he observed:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is ‘a sudden identifiable pathological change’”.
In the decision of Felstead Roche DP had said at [81]:
“It follows that the description of a personal injury as ‘a sudden identifiable pathological change’ is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain.”
The lack of any contemporaneous medical material from soon after the motor accident on 16 October 2020, including any clinical notes from Dr De Havilland and Certificates of Capacity, makes for a difficult task in determining whether Mr Harrigan sustained an injury to his thoracic spine, lumbar spine and/or fracture of the rib. The first medical report of any substance which is in evidence is not provided until almost 12 months after the accident.
Mr Harrigan does not make the task any easier by not providing any evidence of what he experienced in various parts of his body immediately following the motor accident and in the days thereafter.
I am nevertheless satisfied that Mr Harrigan sustained an injury to his thoracic spine because Dr De Havilland records that Mr Harrigan complained to him the following day of pain in his thoracic spine with associated stiffness, and Dr De Havilland found forward flexion of the thoracic spine was reduced, even though he found no tenderness over the thoracic muscles. In my view, that is sufficient to satisfy the definition of personal injury as set out in Felstead and Kear.
Whether Mr Harrigan sustained an injury to his lumbar spine in the motor accident on 16 October 2020 is more problematic. There is no reference to an injury or symptoms in the lower back when Mr Harrigan attends Dr De Havilland the day after the motor accident in the report from Dr De Havilland dated 8 March 2023.
Indeed, there is no specific reference to lower back symptoms in that report at all. Dr De Havilland refers in that report to episodes of exacerbation of back pain on a fortnightly basis, but he does not specify what part of the back he is referring to.
There are Certificates of Capacity issued by Dr De Havilland “lumbar spinal strain with muscle spasms”, but the first certificate in time in the material made available is dated 23 June 2022, which is almost two years after the motor accident occurred. Furthermore, the description of the injury which is set out in those certificates makes no reference to lower back symptoms. There is otherwise no explanation from Dr De Havilland as to when Mr Harrigan first complained of lower back symptoms which might assist in the determination of this particular dispute.
Dr Wijetunga records in his report dated 24 September 2021 that Mr Harrigan experienced an increase of pain following the motor accident in his thoracic spine and “upper lumbar”. He concludes that the most likely diagnosis is a musculoligamentous strain of the spine.
The opinion from Dr Wijetunga must be approached with caution. The assessment was conducted by telehealth and there is no indication in the report of any examination conducted by Dr Wijetunga. His conclusion that the pain experienced by Mr Harrigan in the “upper lumbar” is based upon the description given by Mr Harrigan without any independent verification by way of examination.
Dr Jaeger records in January 2022 that Mr Harrigan described lower back pain of fluctuating intensity since the motor accident. However, no further interrogation is made by Dr Jaeger regarding any injury to the lumbar spine because it is apparent from his report that he was examining Mr Harrigan in regard to neck complaints.
Dr Mastroianni is the only one of four medico-legal experts to conclude that lower back pain complained of Mr Harrigan is as a result of the motor accident. That opinion is based upon “lumbosacral disc pathology”, but Dr Mastroianni has no imaging to guide him in making this conclusion.
The lack of any investigation of the lumbar spine meant that Dr Bentivoglio could not be satisfied that Mr Harrigan did sustain an injury to his lumbar spine.
Mr Harrigan states that he had radiological investigations “including an MRI of my neck, middle back and lower back”, but I could not locate any radiology relating to the lumbar spine in the material before the Commission.
That there is no reference to lower back symptoms when Mr Harrigan initially attended Dr De Havilland, no explanation from Dr De Havilland as to when Mr Harrigan began to experience lower back symptoms, no clinical notes or Certificates of Capacity within the first few months of the motor accident, and no relevant radiology to assist the experts who have examined Mr Harrigan, means I cannot satisfied that Mr Harrigan suffered “a sudden identifiable pathological change” (Petkoska; Felstead) as a result of the motor accident on 16 October 2020.
Although there are references to lower back symptoms in the first substantial reports from doctors following the motor accident, those reports start almost 12 months after the accident occurred and I have otherwise set out my reservations regarding the reliance that can be placed upon those reports.

There will therefore be an award for the respondent for the claim of injury to the lumbar spine.
Dr Lee is the only specialist to provide an opinion as to whether the fracture of the eleventh right rib was caused by the motor accident. Although Dr Lee states that he has not reviewed the actual images of the bone scan and he nominates the twelfth right rib as being fractured, he does provide a plausible explanation of the cause of this particular injury.
That opinion from Dr Lee is enhanced by Dr De Havilland stating in his report that the fracture is consistent with thoracic spinal muscle pain which Mr Harrigan experienced following the motor accident.
There will therefore be a finding that Mr Harrigan sustained a fracture of the eleventh right rib in the motor accident on 16 October 2020.

Whether the applicant sustained a consequential psychological injury as a result of the motor accident on 16 October 2020

The applicant’s evidence

Mr Harrigan states that immediately after the accident he was suffering from nightmares, headaches, loss of confidence, difficulty in coping, frustration, sadness and having difficulty coping with pain. He states that he randomly had flashbacks while he was at work.
Mr Harrigan states that he is not sleeping, he is not coping, and he is need of psychological treatment.

The medical evidence

Dr De Havilland writes in his report dated 8 March 2023 that Mr Harrigan had difficulty sleeping because of flashbacks about the motor accident on the night following the motor accident.
Dr De Havilland writes that Mr Harrigan has become increasingly depressed since the motor accident and that he has watched the mental health of Mr Harrigan deteriorate. He writes that Mr Harrigan still suffers with flashbacks and nightmares, and Mr Harrigan has symptoms of post-traumatic stress disorder.
Sarah Date, psychologist, has provided a report dated 4 July 2023. Ms Date states that she has been seeing Mr Harrigan on a monthly basis since 28 March 2023.
Ms Date writes: “there seems to be some trauma as a result of the accident with William stating he has nightmares and flashbacks of the incident, resulting now in PTSD”.
Ms Date also writes that Mr Harrigan appears very low in mood, flat affect and is teary and emotional when he speaks. She records that Mr Harrigan is currently taking antidepressant and anti-anxiety medication for his mental health.
There is no report in evidence from a psychiatrist which addresses Mr Harrigan’s psychological symptoms.

Determination

Section 11A (3) of the 1987 Act provides:
“A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system”.
In HammondCare v Calka [2016] NSWWCCPD 2 (Calka), AP Roche said at [119]:
“…A psychological injury is an injury that is a psychological or psychiatric disorder (s 11A(3) of the 1987 Act). It is correct that Mr Calka gave evidence that he has been suffering from constant stress, anxiety, depression and feelings of hopelessness. However, there is no expert evidence that those symptoms amount to a psychological or psychiatric condition.”
Mr Dodd submits that Dr De Havilland in his report dated 8 March 2023 diagnoses Mr Harrigan as having post-traumatic stress disorder. I do not agree with that submission. Dr De Havilland writes that Mr Harrington has symptoms of post-traumatic stress disorder, but he does not provide sufficient details or explanation for a diagnosis to be made of that particular condition.
Ms Date writes that Mr Harrigan has nightmares and flashbacks which has resulted in post-traumatic stress disorder, but Ms Date also does not provide sufficient details or explanation for a diagnosis to be made of that particular condition. The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) sets out several criteria which must be met for a diagnosis of post-traumatic stress disorder to be made and neither the reports from Dr De Havilland nor Ms Date set out in sufficient detail how Mr Harrigan’s symptoms meet the strict criteria for post-traumatic stress disorder.
Dr De Havilland and Ms Date also record symptoms of depression, but there is no diagnosis of a psychological condition which stems from those symptoms.
I must emphasise that I am not dismissive of the psychological symptoms which Mr Harrigan complains of, and it is understandable that Mr Harrigan has had a low mood due to the ongoing pain he has been experiencing. However, consistent with what was set out in Calka, the expert evidence relied upon by Mr Harrigan does not reach a level where I can be satisfied that Mr Harrigan has sustained a psychological injury as required by s 11A (3) of the 1987 Act.
There will be an award for the respondent for the claim of a consequential psychological injury.

Whether the applicant continues to suffer the effects of the injury to his cervical spine, thoracic spine and right eleventh rib as a result of the motor accident on 16 October 2020

The applicant’s evidence

Mr Harrigan states that he had severe pain in his neck and his middle back when he returned to work with the respondent. He states that he found it very difficult to drive home and was not sleeping.
Mr Harrigan states that he is continuing to experience pain in his neck and his middle back.

The medical evidence

Dr Jaeger writes in January 2022 that he discussed with Mr Harrigan that he had suffered from a typical cervical whiplash injury, which essentially means ongoing pain without radiological abnormality to explain it. He also writes that because it is now over 12 months since the motor accident, that the prognosis regarding full recovery is becoming quite guarded.
Dr Bentivoglio does not find much by way of abnormality or dysfunction in the cervical spine or thoracic spine on his examination but appears to accept that Mr Harrigan has ongoing symptoms in his neck and thoracic spine when he writes: “With his ongoing neck and thoracic spine symptoms he needs to avoid arduous type of work activities”.
Dr Bentivoglio also assesses Mr Harrigan as having 5% permanent impairment of the cervical spine and 5% permanent impairment of the thoracic spine pursuant to the American Medical Association 4 Guidelines.
Dr Ho found on examination that movements of the whole spine were restricted to about
50-75% of movement.
Dr Ho opines:
“Somehow there has been poor progress for nearly two years without complete resolution of symptoms. I think this is still related to the employment and injury of 16 October 2020”.
However, Dr Ho then opines that the motor accident has caused an aggravation of a pre-existing condition in the cervical spine. Dr Ho then writes:
“I believe the aggravation has ceased and whatever injury happened which basically is a musculoligamentous type of injury should have ceased after three to six months at the most with appropriate treatment. I cannot understand why, for two years, the symptoms still remain so significant and have restricted him from working”.
Dr Ho writes in his supplementary report dated 18 October 2022:
“I believe the injury was mainly soft tissue. There was no major pathology found on the bone scan and the MRI scan to justify a complaint of two years, with plenty of treatment sessions with an osteopath and exercise physiology, so I think any symptoms or incapacity are no longer related to any workplace injury.”
Dr Mastroianni found on examination that neck movements made by Mr Harrigan were restricted and there was tenderness over the lower cervical segments.
Dr Mastroianni does not appear to specifically examine the thoracic spine. He provides no opinion in regard to the condition of the thoracic spine. Dr Mastroianni makes an assessment of 5% permanent impairment of the cervical spine pursuant to the AMA 4 Guidelines.
Dr Lee found on examination that there was tenderness to palpation over the cervical spine and restricted movement of the cervical spine. Dr Lee found mildly reduced asymmetrical ranges of movement of the thoracic spine.
Dr Lee opines that the musculoligamentous injury that Mr Harrigan has sustained to his cervical spine and thoracic spine “are consistent with his current condition and disability”. Dr Lee assesses Mr Harrigan as having 5% permanent impairment of the cervical spine and 5% permanent impairment of the thoracic spine pursuant to the AMA 4 Guidelines.
As previously noted, Dr Lee considers that the fracture of the rib, which he locates as being the twelfth rib, has resolved.

Determination

The preponderance of medical evidence supports a finding that Mr Harrigan continues to suffer the effects of injury to the cervical spine and thoracic spine as a result of the motor accident on 16 October 2020. Drs Bentivoglio, Mastroianni and Lee all find restrictions in Mr Harrigan’s neck and consider that Mr Harrigan has some permanent impairment of the neck as a result of the motor accident. Drs Bentivoglio and Lee also accept that Mr Harrigan has permanent impairment of the thoracic spine.
Furthermore, although details in the Certificates of Capacity issued by Dr De Havilland change over time (and this will be addressed in more detail when a determination is to be made regarding the claim for weekly payments of compensation), those certificates are consistently based upon ongoing symptoms complained of by Mr Harrigan in the neck and upper back.
I prefer the opinions of Drs Bentivoglio, Lee and Mastroianni, which are supported by the Certificates of Capacity issued by Dr De Havilland, on the issue of whether the effects of the injury to the cervical spine have ceased over the opinion provided by Dr Ho.
Dr Ho’s conclusion that the effects of the injury to the cervical spine have ceased is based upon can expectation that a musculoligamentous injury will resolve within three to six months with appropriate treatment. However, Dr Ho offers no explanation for his observation of restriction of movement of the cervical spine almost two years after the motor accident, whereas the other doctors I have referred to accept an ongoing causal link between the motor accident which Mr Harrigan was involved in and the restrictions and impairment of the neck which those doctors also observe.
Drs Bentivoglio, Lee and Mastroianni do have differing diagnoses of the condition of Mr Harrigan’s cervical spine, but they are all agreement that the restrictions and impairment of the neck which they find on examination continue to be due to the motor accident.
Ms Goodman on behalf of the respondent submits that in determining whether Mr Harrigan continues to suffer the effects of the injury to the cervical spine and thoracic spine, consideration must be given to problems that Mr Harrigan had with those parts of his body prior to the motor accident.
A report from Louise Adam, independent osteopathic consultant, dated 24 November 2010 refers to Mr Harrigan having frequent episodes of headache, neck, shoulder and forearm pain.
A report from Dr Home, consultant in occupational medicine, dated 15 July 2011, records Mr Harrigan having intermittent pain in the right side of his neck, which most of the time is of moderate severity. Dr Home also records a finding of tenderness to palpation between T8 and T11 when he examines Mr Harrigan.
However, Mr Dodd on behalf of Mr Harrigan points out that there is no medical evidence of any problems that Mr Harrigan was having with his neck and upper back from 2012 until the motor accident in 2020, and that Mr Harrigan was able to undertake his duties with the respondent from when he commenced employment in 2016 and that those duties did from time to time require heavy manual work.
I agree with the submission made by Mr Dodd that any past problems that Mr Harrigan had with his neck and back was not affecting the duties he was required to undertake for the respondent prior to the motor accident and is not a factor in the determination that I am to make as to whether Mr Harrigan continues to suffer the effects of the injury to the cervical spine and thoracic spine.
There will therefore be a finding that Mr Harrigan has continued to suffer the effects of the injury to the cervical spine and thoracic spine since liability for these injuries was disputed by the respondent in October 2022.
The only medico-legal expert to address the cause of the fracture of the right rib is Dr Lee and he has concluded that the fracture has resolved. The report from Dr De Havilland does not assist on this particular issue.
There will be a finding that the effects of an injury to the right eleventh rib as a result of the motor accident have now ceased.

The claim for weekly payments of compensation

The applicant’s evidence

Mr Harrigan states that he had a period of time off work following the motor accident and then returned to work on reduced hours, but he struggled to maintain his employment. He states that he worked on restricted suitable duties and on reduced hours “until about June 2020” when he states that he “simply could not do it anymore”.
Mr Harrigan states that he would work a 12 hour shift and then have a day off, then work another 12 hour shift and have a day off, and then a further 12 hour shift with one or two days off work thereafter. He states that he was having severe pain in his neck, middle back and lower back. He states that he found it very difficult to drive home and was not sleeping. He states that he was struggling to work on a restricted basis.
Mr Harrigan states that he has never worked in a light or sedentary job. He states that he has never really used a computer or engaged in office-based employment. Mr Harrigan states that he previously worked as a night manager at a hotel for 12 years, but this work included arduous tasks such as loading stock and cleaning.
Mr Harrigan states that his concentration is extremely poor, and he does not believe he could be trained to learn qualifications in an office role.

The medical evidence

The first Certificate of Capacity issued by Dr De Havilland which is included in the evidence in this dispute is dated 23 June 2022, which is almost two years after the motor accident occurred. That Certificate of Capacity certifies Mr Harrigan as being fit for normal hours for a normal week with a lifting capacity of up to 10kg, a standing tolerance of 30 minutes with a five minute break, and a driving ability of up to 75 minutes. The certificate also includes the comment: “12 hours on the road for 3 days; 8 hours at yard duty for 1 day; total 4 days per week.”
Dr De Havilland issues a Certificate of Capacity on 4 August 2022 which certifies Mr Harrigan as having no current work capacity. There is no indication in that certificate or certificates which continue thereafter until 29 September 2022 as to why the certification made by Dr De Havilland changes from Mr Harrigan being able to work a full week, but with restrictions, to having no current work capacity at all.
The report from Dr Wijetunga dated 24 September 2021 refers to a Certificate of Capacity from Dr De Havilland dated 9 September 2021 which certifies Mr Harrigan as being fit for normal hours and normal days each week with restrictions which are similar to those set out in the Certificate of Capacity dated 23 June 2022.
In his report dated 8 March 2023, Dr De Havilland sets out reasons as to why there are certain tasks in the work of a traffic controller that Mr Harrigan would not be able to do. Dr De Havilland considers that Mr Harrigan is not able to undertake tasks which requires frequent head and body twisting such as operating road signs and lifting and storing equipment. He considers that Mr Harrigan has sequential planning and organisational skills, but that his communication skills and his ability to multitask are compromised by decreased mental focusing when he is in pain.
Dr De Havilland opines:
“There is a loss of capacity to perform the majority of his work duties. He struggles with focusing mentally secondary to the pain. He is limited to driving no more than 1 hour in a car. If the car hits a pothole, there is immediate exacerbation of pain in his neck and back”.
Dr De Havilland considers that Mr Harrigan has a work capacity that is limited to 12 hours per week, which is based on four hours per day for three days per week on alternate days.
When Dr Wijetunga sees Mr Harrigan in September 2021, he records that Mr Harrigan is currently working eight hours per day, where he works five hours on the road and three hours at home, and that he had been doing that for four weeks.
Dr Wijetunga records that Mr Harrigan returned to supervisory duties after being off work for three or four months following the motor accident. He records that Mr Harrigan returned to normal duties including driving, but his pain worsened after a month of undertaking those duties and he went back to yard duties with some driving of a truck.
Dr Wijetunga records that the fluctuation in Mr Harrigan’s capacity for work coincides with whether he is undergoing some osteopathy treatment or not. Dr Wijetunga considered, after consultation with Dr De Havilland, that Mr Harrigan would be able to return to full, normal pre-injury duties after a month and after he had the benefit of some osteopathy treatment.
When Dr Bentivoglio sees Mr Harrigan on 24 August 2022, he records that Mr Harrigan had not worked over the last three weeks. Dr Bentivoglio does record that Mr Harrigan underwent a graduated return to work, but that Mr Harrigan found his symptoms tended to flare up with work and he only worked about 50% of the time.
Dr Bentivoglio considers that Mr Harrigan would have some loss of work capacity as a result of his injuries and only be able to perform restricted duties in the future.
When Dr Ho sees Mr Harrigan on 29 August 2022, he records that Mr Harrigan had a “deterioration of pain everywhere” and had not been able to carry on work for a few months.
Dr Ho opines that Mr Harrigan has the capacity for light duties work which would allow him to move around without sitting in the same posture for a constant period of time. He considers that Mr Harrigan would be able to try four hours per day for three days per week on suitable duties and then progress onwards.
Dr Mastroianni records that Mr Harrigan tried to unsuccessfully resume work on a number of occasions after the motor accident.
Dr Mastroianni opines that Mr Harrigan has capacity to work on restricted duties with restrictions on lifting and no work with arms above shoulder height. He considers Mr Harrigan is fit for a sedentary job and that on returning to work Mr Harrigan would need to start work on a workplace based rehabilitation program commencing at two hours per day on alternative days and then slowly upgrading his hours over a two month period.
Dr Mastroianni considers that Mr Harrigan has the potential to work some 20 to 25 hours per week, but only after he has been assessed on a workplace based rehabilitation program.
Dr Lee records that Mr Harrigan was able to increase his work hours to 36 hours a week with restrictions, but he was not able to tolerate this because he had “locked up”. Dr Lee records that the suitable duties being undertaken by Mr Harrigan involved working as a relay between two other workers performing traffic control. He records that at some later point in time Mr Harrigan had been upgraded to four hours a day for three days per week with a lifting limit of 10kg, but he could not perform any form of work due to a lack of available suitable duties.
Dr Lee notes the report from Dr Wijetunga in September 2021 that Mr Harrigan was upgraded to normal hours and duties, but then was reduced to suitable duties because he could not tolerate a full working week. He also opines that the effects of the motor accident only relate to 20% of Mr Harrigan’s fitness for work and the rest is due to non-accident related factors.
Dr Lee concludes:
“It is my opinion that based on accident-related factors, Mr Harrigan is capable of full time sedentary to light duties with restrictions of avoidance of prolonged static positions of neck and upper back; avoidance of heavy lifting and work at extremes of reach, minimal work above shoulder height to avoid aggravation of neck symptoms; and self-directed changes in position.”

Determination

Mr Dodd on behalf of Mr Harrigan submits that his client did the best that he could to stay at work despite his ongoing pain, but that it just became too much for him.
Mr Dodd concedes that Mr Harrigan has some work capacity, but it would be in the vicinity of an ability to earn between $300 and $400 per week, which represents about 15 to 20 hours of work per week at $20 per hour.
Ms Goodman refers to the Certificate of Capacity dated 23 June 2022 which certifies Mr Harrigan being fit to work a full working week but with some restrictions. She submits that there is no satisfactory medical explanation as to why Mr Harrigan suddenly goes from that level of capacity for work to having no current work capacity at all.
Ms Goodman submits that in the absence of such an explanation, and having regard to the opinions of Dr Bentivoglio and Dr Lee who place no restrictions on the amount of hours that Mr Harrigan can work, Mr Harrigan would be able to work full time in a suitable job such as light courier work.
Mr Harrigan again does not advance his claim in this particular part of the dispute by the lack of his own evidence as to what work activities he undertook with the respondent when he returned to work following the motor accident. His own evidence is that he worked a 12 hour shift and then had a day off, then worked another 12 hour shift and had a day off, and then worked a further 12 hour shift with one or two days off work thereafter. However, he provides no details of what that work involved.
That is important information to have because there can be a substantial difference between Mr Harrigan doing some of his old duties such as some truck driving, which Dr Wijetunga understands Mr Harrigan was doing in September 2021, and doing much lighter duties, including some work at home, which is also referred to by Dr Wijetunga.
Dr Wijetunga does provide some details of what Mr Harrigan had been doing upon his return to work for the respondent, but there is the passage of almost another 12 months between Dr Wijetunga providing his report and when it appears Mr Harrigan ceased work in August 2022 where there is no evidence presented as to what Mr Harrigan was actually doing at work for the respondent.
In Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 (Figueira) DP Roche expressed caution in approaching the worker’s evidence of what they can or cannot do without due regard to the medical evidence. Although that decision involved a psychological injury, what was said by DP Roche does have wider application:
“… a worker’s subjective view of his or her fitness for work will really be determinative, especially in a case involving the psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including medical evidence, and make an assessment based on the evidence.”
I have accepted from a review of the evidence that Mr Harrigan has continued to suffer the effects of injury to the cervical spine and thoracic spine as a result of the motor accident since liability was disputed by the respondent in October 2022.
In my view, the assessment made by Dr Mastroianni of Mr Harrigan being able to undertake 20 hours of work per week is the most realistic assessment from the various medical opinions of Mr Harrigan’s capacity for work.
I am mindful that considerable weight should be given to the material provided by Dr De Havilland on Mr Harrigan’s capacity for work because Dr De Havilland has had the benefit of reviewing Mr Harrigan’s condition on a regular basis for almost three years. However, Dr De Havilland provides no explanation as to why he considers that Mr Harrigan is restricted to working 12 hours per week when Dr De Havilland concedes in his report dated 8 March 2023 that Mr Harrigan does have certain skills even if he cannot return to his pre-injury job.
However, I also consider that the opinions of Dr Bentivoglio and Dr Lee that Mr Harrigan is capable of working a full week to be too optimistic and do not involve an appreciation of the difficulties Mr Harrigan had experienced in trying to maintain full time employment with the respondent. I agree with the submission made by Mr Dodd that Mr Harrigan was doing the best he could to maintain his employment with the respondent but had reached a stage in or about August 2022 when he could not keep up with all of the manual work that he was required to do.
This conclusion is supported by the material from Dr De Havilland. Dr De Havilland sees Mr Harrigan on a regular basis, and he considers that the ongoing symptoms which Mr Harrigan presents with in his neck and upper back are serious enough that he should not be doing full time work.
The assessment made by Dr Mastroianni that Mr Harrigan can do 20 hours of work per week allows for Mr Harrigan to be able to work around six hours a day but then have a day to rest, or to work four hours per day and then have half a day on each day to rest.
I agree with the submission made by Ms Goodman that the restrictions on Mr Harrigan’s work capacity which have been set out by Dr Bentivoglio, Dr Lee and Dr Mastroianni would allow for Mr Harrigan to undertake light courier work. Such work would involve light lifting and carrying of objects, little or no work above shoulder height, and the ability to change position on a regular basis between driving and the delivery of parcels.
Suitable employment would also include basic clerical and administrative work in an office such as photocopying, filing, collating, and reception duties. Mr Harrigan states that he has no experience of work in an office, but the duties which I have referred to are quite basic and I also infer from the record made by Dr Wijetunga, and in the absence of any evidence from Mr Harrigan, that the three hours of work he did from home each day for the respondent must have involved administrative work which could be replicated in an office environment.
The opinion from Dr Mastroianni that Mr Harrigan can work 20 to 25 hours per week is contingent upon Mr Harrigan undergoing a workplace based rehabilitation program. However, Dr Mastroianni merely records that Mr Harrigan has tried to resume work on a number of occasions without success. That is not an accurate understanding of what Mr Harrigan has done at work with the respondent since the motor accident which can be adduced from the evidence.
Dr Mastroianni does not appear to be aware that Mr Harrigan has undertaken other jobs work with the respondent since the motor accident including supervisory work, yard duties, and some administrative work from home. The skills and experience which Mr Harrigan does possess allows for a finding that he is suited to employment in a light courier role or undertaking very basic clerical and administrative tasks in an office for 20 hours per week.
The hourly rate for a Transport Worker Grade 2 under the Road Transport and Distribution Award 2020, which is the appropriate level for a light courier worker was $23.13 per hour as at 12 November 2022. The hourly rate for a Level One - Year One employee under the Clerks – Private Sector Award 2020 was $22.67 per hour as at 12 November 2022. An appropriate hourly rate which reflects what Mr Harrigan is able to earn in suitable employment would be $23 per hour. Twenty hours of work at $23 per hour amounts to $460.
The applicant’s PIAWE were agreed at $2,010.85. Eighty per cent of PIAWE amounts to $1,608.70. The difference between $1,608.70 and Mr Harrigan’s capacity to earn in suitable employment of $460 amounts to $1,148.70.
There will be an award made that the respondent will pay weekly payments of compensation to the applicant in the amount of $1,148.70 per week from 12 November 2022 to date and continuing pursuant to s 37(3) of the 1987 Act.

The claim for medical expenses

There will also be an award that the respondent is to pay the applicant’s costs of reasonably necessary medical treatment for the injury to his cervical spine and thoracic spine.

[2023] NSWPIC 433

30 August 2023