Hawkins v Read Industries Pty Ltd (De-registered)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hawkins v Read Industries Pty Ltd (De-registered) [2022] NSWPIC 117
APPLICANT:	Ian Hawkins
RESPONDENT:	Read Industries Pty Ltd (De-registered)
MEMBER:	Cameron Burge
DATE OF DECISION:	22 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits for impairment said to arise from accepted in jury in February 2005 and from condition to cervical spine allegedly consequent upon it; liability declined on basis there was no consequential condition and applicant’s incapacity from 2011 was not caused by the accepted injury; Held- the applicant has not demonstrated a causal link between the 2005 injury and any cervical spine condition; the applicant returned to work on normal duties for a significant period after the injury at issue, and suffered a number of intervening injuries to his lumbar spine; the applicant has not demonstrated on a common sense basis that his claimed incapacity was caused by the accepted injury; award for the respondent.
DETERMINATIONS MADE:	Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

On 22 February 2005, Ian Hawkins (the applicant) suffered an injury to his lumbar spine in the course of his employment with Read Industries Pty Ltd (the respondent) when he was scraping, shovelling and sweeping large wads of dough underneath a roller at which time he hit his back and felt pain in the lower left section of his spine.
The fact of this injury is not in dispute in these proceedings. The applicant also claims that as a consequence of his lower back injury, he sustained a consequential condition to his cervical spine.
The applicant brings these proceedings seeking payment of weekly compensation as a result of alleged incapacity arising from that injury. When the matter came before me for hearing, the applicant limited his claim for weekly benefits to a period of 130 weeks from 23 May 2011, less three weeks for which he had been paid. The applicant's preinjury earnings were agreed to total $860.93 per week, meaning the relevant sum pursuant to section 36 of the Workers' Compensation Act 1987 (the 1987 Act) is $817.88 per week, and any payments pursuant to section 37 of the 1987 Act would be at the rate of $688.74 per week.
The applicant brought prior proceedings with respect to this injury in 2014, at which time Approved Medical Specialist Dr Assem issued a Medical Assessment Certificate (MAC) stating the applicant's degree of whole person impairment as a result of the injury was not fully ascertainable.
The respondent disputes liability for the payment of weekly compensation, and although it admits the fact of the 2005 lumbar spine injury, it disputes any consequential condition to the cervical spine and also alleges that any incapacity for the period claimed was what not due to the 2005 injury, but rather to a combination of degenerative changes to the applicant's lumbar spine and the effects of other injuries sustained by him after the one at issue.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a consequential condition to his cervical spine as a result of the lumbar spine injury, and
(b) whether the applicant's incapacity for the period claimed was as a result of the injury on 22 February 2005.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 17 February 2022. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr Goodridge of counsel instructed by Mr Kospetas appeared for the applicant. Ms Compton of counsel instructed by Mr Bennett appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    applicant's Application to Admit Late Documents (AALD) and attached documents dated 23 November 2021, and
(d)    applicant's AALD dated 10 February 2022 and attached documents.
The applicant's AALD dated 10 February 2022 contained an updated wages schedule upon which he relied. That wages schedule was relied on instead of the applicant's originally filed wages schedule, which was not taken into consideration by the Commission in reaching this decision.

Oral evidence

There was no evidence called at the hearing.

FINDINGS AND REASONS

Consequential condition to the cervical spine

Mr Goodridge submitted that the applicant had not raised any issues with his cervical spine, because at that time, they were not considered of sufficient seriousness to warrant medical investigation.
Medically, the first time any issue with the applicant's cervical spine is raised is in the report of Independent Medical Examiner (IME) Dr Patrick dated 26 October 2021. That document is Dr Patrick's third report, having provided previous reports in 2012 and 2017. For the first time in 2021, Dr Patrick described the nature of the applicant's injury as "work-related back injury affecting thoracic and lumbar spine effect predominantly on left lower limb, and now with increasing neck problems."
In his earlier report of 27 January 2017, Dr Patrick had stated the applicant was complaining of intermittent neck discomfort. Notwithstanding this being the case, in that report, Dr Patrick did no more than describe the applicant as suffering some intermittent neck pain and did not attribute that pain as a consequence of the applicant's lumbar spine injury.
By 2021, Dr Patrick opined that the applicant required "quality MRI cervical spine". On examination, Dr Patrick stated the applicant had significant dysmetria accompanied by significant neck pain. Dr Patrick said "he has a situation where his cervical spine/neck has deteriorated significantly with the passage of time, and he does have some dysmetria and limitation in range of active motion." Dr Patrick then stated that the applicant's employment with the respondent is a substantial contributing factor to his relevant injuries.
It is noteworthy that the applicant is not required to satisfy the requirements of section 4 of the 1987 Act with respect to his cervical spine. Rather, what is required is for the applicant to establish that he has suffered discomfort and a condition in that body system which, on a common sense basis, can be attributed to his original lumbar spine injury.
I do not believe the applicant has demonstrated that causal link. The relevant authorities surrounding causation in the Workers' Compensation context stem from the Court of Appeal decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), in which Kirby P (as he then was) said what is required is a common-sense evaluation of all the evidence to determine whether there is a continuous causal chain between the original injury and the alleged consequential condition.
In this matter, the applicant has not in my view demonstrated that this is the case. Dr Patrick, although no doubt consistent in recording the worsening condition in the applicant’s cervical spine, does no more than provide a bare ipse dixit statement that the applicant's employment is causally linked to that condition. There is no explanation in Dr Patrick's reports as to what the causal link between the lumbar spine injury and the development of the applicant's neck symptoms is. The applicant bears the onus of proof. He must satisfy the Commission on the balance of probabilities of the presence of such a causal link between the two body systems.
In this matter, there is a paucity of evidence to support the applicant's case regarding a consequential condition.
There will therefore be an award for the respondent in relation to the claim for consequential condition to the cervical spine.

Whether the accepted lumbar spine injury caused the applicant's incapacity

The respondent accepts the applicant suffered a frank injury to his lumbar spine on 22 February 2005. In my view, the most compelling evidence regarding that injury is contained in the IME report of Dr Thomson found at page 57 of the Reply. The virtue of Dr Thomson's opinion is that he had the benefit of examining the applicant on the first occasion only two months after the injury at issue.
At that time, Dr Thomson considered the applicant's lumbar spine injury to be one of a musculoligamentous strain. I am inclined to accept that view. Indeed, the applicant’s then general practitioner Dr Graham, provided a question-and-answer report to the respondent's insurer dated 4 March 2005 at which time he also diagnosed a lumbar back strain. The proposed treatment was physiotherapy and exercises three times per week for two weeks. Dr Graham also prescribed analgesia as and when required. He indicated he expected the applicant to be able to return to work on light duties in March 2005, with a graduated return to full employment.
A physiotherapy management plan dated 7 March 2005 was also included in the Application. That revealed there were some restrictions on sitting, standing and lifting for the applicant as a result of the injury in issue. Dr Graham also provided a WorkCover medical certificate dated 22 February 2005, in which he described the injury as a lumbar muscular strain.
On 29 March 2005, the applicant was declared fit for preinjury duties from 30 March 2005.
That evidence is consistent with the statement of the applicant, who noted he had "time off work post-accident and although still suffering from symptoms in my back, I was able to return to work on light duties and thereafter normal duties."
In his statement, the applicant describes ongoing symptoms in his lower back from the date of injury until July 2008, when he was referred for radiological investigations due to his ongoing symptoms. On 22 July 2008, the applicant underwent an X-ray to his lumbar spine which revealed early anterior osteophyte formation and facet joint sclerosis.
The difficulty for the applicant, however, is that there were subsequent incidents which involve injury to his lumbar spine after he had returned to work on normal duties. In his report dated 22 December 2011, Dr Patrick recorded the following:
"There was subsequent incident probably in the latter part of 2005 when Ian Hawkins was in the batching room washing the whole unit. He and his mother used to work together on the night shift. He was actually holding a hose (unlike our Prime Minister) and he was on a very steep metal staircase going up to the hopper when he slipped and slid down somewhat sideways while holding the hose. He fell down landing very heavily onto his buttocks. He is not sure of the date of this incident. He believes he slipped because the whole area including the metal steps were wet. There was continual cleaning. He believes he was off work for some weeks. He had some physiotherapy."
Dr Patrick then refers to the July 2008 X-rays which revealed anterior osteophyte formation and facet joint sclerosis.
Mr Goodridge submitted that there may have been some error on the part of the applicant in recalling the history of the fall down the stairs, however, I reject that submission. The applicant has recounted the fall down the stairs at work in various manners to a multitude of medical professionals. This includes Dr Thomson who provided a further report dated 25 October 2011 in which he noted:
"I note I previously examined this worker on 15 March 2005 regarding a lumbar back injury claimed on 22 February 2005 and it was considered at the time that he sustained a fairly mild musculoligamentous strain of the lumbar back which was resolving when he was seen then.
A diagnosis was made when last seen of resolving musculoligamentous strain of the lumbar back and I refer to my earlier report for full details to that date.
I note he presents today with a claimed lumbar back disability, having recently seen Dr Charles New, orthopaedic/spinal surgeon who on reviewing him on 15 August 2011 noted that a recent MRI ‘shows considerable disc prolapse and sequestration of the left-hand side at L5/S1’ and that Dr New recommend surgery.
I note particularly in Dr New's report of 16 August 2011 in terms of history taking that the worker said the provocative incident alleged (on 25 February 2005) occurred ‘when he fell down the stairs at work resulting in him having debilitating pain and left-sided leg pain with dysesthesia (pins and needles).’
This claim is seriously at odds with the history I obtained when I saw the worker on 15 March 2005 which refers to him extracting objects from under rollers of the machine as being the causative event in question."
Without being critical of the applicant, it is apparent that he has conflated in his history to Dr New of the later fall down the stairs at work with the injury at issue in this matter.
It is, in my opinion, of significance that the applicant underwent radiological investigation following the incident at issue which demonstrated only the presence of degenerative changes and no significant pathology to his lumbar spine. It was after the later incident of the fall down the stairs when the presence of significant lumbar spine pathology is noted in radiological examinations undertaken in 2011. It is difficult, in my opinion, to accept the view of Dr Patrick in circumstances where he had an incorrect history of the onset of back pain and the intervening matters which caused them.
Ms Compton submitted, and I accept, that the applicant was able to work for many years following his back injury and return to work on normal duties. She submitted that whilst there was no doubt an accepted injury, there had been a break in the causal chain by virtue of the intervening event and the long gap between the index incident in February 2005 and the discovery of significant spinal pathology.
As noted earlier in these reasons, the applicant bears the onus of proof in establishing that that incapacity claimed was caused by the injury at issue.
That submission is also consistent with the clinical records of Dr Graham, general practitioner on 28 February 2005, which recorded the applicant stating he was 90% better.
It is noteworthy at this point to record this claim relates to a frank injury. It is not one where the applicant relies on a sequence of separate events, nor is it a nature and conditions of employment claim or one relating to the aggravation of a disease process. This is of significance when the applicant has clearly suffered further frank injury in the course of his employment after the injury upon which he seeks to rely in these proceedings.
On 3 January 2006, Dr Graham records the applicant attending with lower back pain after a twisting injury "some days ago". The applicant then returned on 6 January 2006 with recurrent backache, pain in his left buttock, and occasional radiation to his left leg. I reiterate, this was after the applicant suffered a twisting injury in or about early January 2006. Indeed, between 22 March 2005 and January 2006, the applicant attended Dr Graham on no fewer than five occasions and made no mention of any issue with his back.
On balance, I accept Ms Compton's submission that there is no evidence to link the applicant's lumbar spine injury in February 2005 to the bulging discs which were first diagnosed in 2010 or 2011, and I am not satisfied on a common-sense basis of the presence of the requisite causal link.
Ms Compton did not seek to criticise the applicant or allege that he had in any way confected or consciously sought to hide the history of the subsequent injuries, and I accept that this is the case. Rather, it seems from the medical evidence that the applicant is something of a confused historian but there is no question he has consistently stated that he fell down the stairs after suffering the lumbar spine strain in February 2005 which is in issue.
On balance, I am not satisfied that by the time of the onset of the applicant's claimed incapacity that is accepted back injury was the cause of it. Accordingly, there would be an award for the respondent in this matter.
Having found for the respondent on the question of causation of the incapacity, I do not consider it necessary to enter into an exercise of quantifying that incapacity.

SUMMARY

For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 117

22 March 2022