Headon v Tasco Petroleum
[2022] NSWPIC 644
•21 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Headon v Tasco Petroleum [2022] NSWPIC 644 |
| APPLICANT: | Wayne Headon |
| RESPONDENT: | Tasco Petroleum |
| Member: | Rachel Homan |
| DATE OF DECISION: | 21 November 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation; applicant experienced a sudden onset of thoracic pain while lifting a heavy gate at work; investigations revealed a T5 fracture and plasmacytoma; plasmacytoma weakened the vertebra such that a fracture could have happened spontaneously or with trivial trauma; whether the applicant sustained a compensable injury pursuant to sections 4 and 9A of the Workers Compensation Act 1987 (1987 Act); Held – the fracture occurred at the applicant’s usual workplace, during normal work hours while applicant engaged in a usual work activity; sudden pathological change occurred “in the course of employment” pursuant to section 4(a) of the 1987 Act; although the plasmacytoma was a substantial if not the main contributing factor to the injury, employment also a substantial contributing factor to the injury; activity being performed at the time of injury involved exertion of substantial force and awkward positioning; although there was a high probability that the fracture would occur at some point, employment was substantial contributing factor to the occurrence of the injury at that point in time; matter remitted to President for referral to a Medical Assessor. |
| determinations made: | 1. The applicant sustained an injury in the course of his employment with the respondent on 3 March 2021 pursuant to s 4(a) of the Workers Compensation Act 1987. 2. The employment concerned was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987. |
| ORDERS MADE: | 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 3 March 2021 Body part: Thoracic Spine Method: Whole Person Impairment 4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments, the Reply and all attachments and the documents attached to the Application to Admit Late Documents lodged by the respondent on 10 November 2022. |
STATEMENT OF REASONS
BACKGROUND
Mr Wayne Headon (the applicant) was employed by Tasco Petroleum (the respondent) as a fuel tanker driver.
On 3 March 2021, the applicant was attempting to open a gate at the yard where his truck was kept when he felt a stabbing sensation followed by immediate pain in his upper back. The applicant took Panadol, had a massage and rested over the weekend. The following week, the applicant tried to return to work when his legs suddenly gave way as he reached down to pick up a hat he had dropped.
The applicant was taken to Griffith Base Hospital and subsequently transferred to St Vincent’s Hospital, where he was diagnosed with a plasmacytoma and fracture at the T5 vertebra.
A claim for compensation was made and, on 16 September 2021, the respondent’s insurer declined liability to pay compensation.
On 31 May 2022, the applicant’s solicitors forwarded a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in reliance upon an assessment of 15% whole person impairment (WPI) of the thoracic spine made by orthopaedic surgeon, Dr Graeme Doig.
The claim for lump sum compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 17 August 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 12 September 2022. The applicant seeks lump sum compensation in accordance with Dr Doig’s assessment.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 15 November 2022. The applicant was represented by Mr Graham Barter of counsel, instructed by Ms Reichelle Jackson. The respondent was represented by Mr Tom Grimes of counsel, instructed by Ms Jessica Liu. A representative from the insurer was also 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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to the thoracic spine on 3 March 2021 pursuant to ss 4 and 9A of the 1987 Act, and
(b) the entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 11 November 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in a written statement made by him on 5 September 2022.
The applicant described the events on 3 March 2021. The applicant said he was attempting to open a gate at the yard where his truck was kept. The gate was very heavy and the applicant was required to use a steel bar at the bottom of the gate and use force to lever the gate up while stretching and reaching up to remove a threaded bolt. The gate would not open unless it was levered up in order to be able to remove the pin. The applicant estimated the weight of the gate at approximately 30 to 50kg. The gate was made of steel and was approximately 5m wide and 2m high.
As he was opening the gate, the applicant felt a stabbing sensation followed by immediate pain in his upper back. The applicant initially thought he had pulled a muscle and sat down. The applicant took some Panadol. The applicant completed his first delivery, but as he was driving to his second delivery, was unable to continue driving due to severe pain. The applicant reported the incident to his boss.
The applicant had a massage and spent the weekend in bed resting. On 8 March 2021, the applicant tried to return to work. As the applicant reached down to attempt to pick up a hat he had dropped on the floor, his legs suddenly gave way. An ambulance was called and the applicant was conveyed to Griffith Base Hospital. The applicant was subsequently transferred to St Vincent’s Hospital in Sydney. The applicant described the treatment that followed.
The applicant denied experiencing any upper or lower back pain prior to the injury whilst lifting the gate on 3 March 2021. The applicant considered himself fit and healthy and led a fairly active lifestyle. The applicant enjoyed playing golf and going clay target shooting. The applicant had been unable to return to these activities and had difficulty performing his domestic chores since the injury.
Incident report
An incident report completed on 3 March 2021 described the incident as involving the applicant attempting to open the main exit gate of the yard. As he lifted the gate to remove a locking pin, he felt “a bit of a pop/twinge in back”. The applicant didn’t think much of it until he continued doing his work and it got worse.
Treating medical evidence
A discharge referral prepared by Griffith Base Hospital on 17 March 2021 recorded that the applicant was admitted on 8 March 2021. The reason for admission was reported as:
“Sudden onset back pain after lifting a gate. Found to have a pathological T5 vertebral fracture associated with a T5 lytic lesion.”
The applicant was transferred to St Vincent’s Sydney for biopsy of the T5 lesion.
A discharge summary referral prepared by St Vincent’s Hospital on 1 May 2021 indicated that the applicant had been diagnosed with a plasmacytoma and received treatment including radiotherapy.
A CT guided biopsy of the T5 lytic lesion revealed a plasma cell tumour. A CT skeletal survey identified a lytic/destructive lesion in the T5 vertebral body with an associated “pathological wedge fracture”. An MRI of the spine revealed a “pathological fracture of the T5 vertebral body”.
A report prepared by A/Prof Nada Hamad, dated 15 September 2021 noted,
“Wayne had an MRI done on 9 August, which identified the pathological compression fracture of T5 with further loss of anterior vertebral body height compared to the CT that was done in March in 2021. There were two areas of enhancement within the posterior aspect of the T5 vertebra extending into pedicles, particularly on the right suggesting the presence of active residual disease.”
A/Prof Hamad reported that the applicant’s ongoing pain was likely due to “mechanical injury from the initial pathological fracture”.
Dr Doig
The applicant relies on medico-legal reports prepared by orthopaedic surgeon, Dr Graeme Doig, dated 23 May 2022.
Dr Doig took a history of the event on 3 March 2021 that was consistent with the applicant’s statement evidence. The applicant described a cracking sensation in his thoracic spine with immediate pain. The applicant denied any previous problems or injuries to the anatomical area.
Dr Doig noted that medical imaging at Griffith Base Hospital revealed a pathological fracture of the T5 vertebra with collapse of the vertebral body. The applicant was transferred to St Vincent’s Hospital where a CT guided biopsy was undertaken, revealing a plasmacytoma. The applicant was placed under the care of a haematologist and high-dose radiotherapy was applied to the area.
Dr Doig described his examination and gave an opinion on causation as follows:
“The cause of plasmacytoma is unknown. It is a bone tumour arising from the plasma cells and although can occur in any bone, is most commonly found in the spine, as a result of the development of abnormal plasma cells within the bone marrow. Mr Headon suffered a pathological fracture of the T5 thoracic vertebra as a result of the incident of 3 March 2021.”
Asked whether employment was “the main substantial contributing factor” to the injury, Dr Doig responded:
“Your client’s employment did not cause the plasmacytoma, although appears to have aggravated the condition, resulting in vertebral collapse after levering the heavy gate on 3 March 2021.”
Dr Doig made an assessment of 15% WPI following a 1/10 deduction for the pre-existing condition of a plasmacytoma.
Dr Breit
The respondent relies on medico-legal reports prepared by orthopaedic surgeon, Dr Robert Breit, dated 14 September 2021, 9 August 2022 and 26 October 2022.
Dr Breit’s first report was prepared following a file review. Dr Breit referred to the various radiological reports and clinical records, including the discharge summary from St Vincent’s Hospital.
Dr Breit gave the opinion that the applicant had not sustained a work injury, explaining:
“This gentleman has not sustained a work injury. He has had a pathological fracture due to a plasmacytoma. It appears to be a solitary lesion so it is really described as a solitary plasmacytoma of bone. This is a tumour consisting of abnormal plasma cells. A pathological fracture occurs without adequate trauma due to pre-existing pathology in the bone such as a tumour mass or osteoporosis or conditions like brittle bone disease.”
Dr Breit said the fracture was “inevitable” due to the presence of the tumour and it was “purely coincidental” that it happened at work. The fracture could have occurred simply bending down to tie his shoelaces.
Dr Breit’s second report, was prepared following an examination of the applicant on 4 August 2022. On this occasion, Dr Breit obtained a history of injury that was consistent with the applicant’s statement evidence. It was noted that the applicant denied any relevant past medical history. Dr Breit performed an examination and referred to his previous comments on the radiological investigations.
Dr Breit said there was no doubt regarding the diagnosis but causation was in issue. Asked whether he considered the applicant had suffered an injury arising out of or in the course of employment, Dr Breit responded,
“No, I do not. It was not a traumatic event, and I would not consider this to be a predisposing condition. It is a distinct pathological entity eroding most of the body at T5 and extending into the pedicles. Fracture was inevitable and purely coincidental that it occurred a work. It could have occurred simply bending down to put on his shoes. To some extent it is fortunate this episode resulted in an early diagnosis so that the treatments are better than otherwise.”
Dr Breit said there was no impairment relating to employment and noted that, even if there was, there were no X-rays or reports that could be used to define the extent of compression.
In his final report, Dr Breit was asked to comment on the opinions expressed by Dr Doig and stated:
“This man suffered a pathological fracture, that is in abnormal bone which in this case was due to plasmacytoma. That is a malignant lesion within the vertebral body. It erodes the vertebral body resulting in marked structural weakness which is the reason the fracture occurred.
Pathological fracture occurs with trivial force or spontaneously without trauma. It may occur at any time walking down the street, coughing or sneezing and similar minor activities.
It is impossible to provide a definitive response in this situation, it is a matter of opinion. I can only confirm that which I have already reported.”
Submissions
Oral submissions were made at the arbitration hearing on 15 November 2022 and were recorded.
Applicant’s submissions
The applicant submitted that the injury was most appropriately described as a frank injury for the purposes of ss 4(a) and 9A of the 1987 Act.
The applicant submitted that it was common ground that the applicant had a plasmacytoma. The applicant referred to Dr Breit’s description of this condition in his supplementary report. Dr Breit considered it was impossible to provide a definitive response as to whether the fracture was simply the effect of the plasmacytoma or whether the fracture occurred as a result of the plasmacytoma and the trauma involved in the applicant lifting the heavy gate at work on 3 March 2021.
The applicant submitted that the latter scenario was correct and described the applicant’s injury as a classic “eggshell skull” case. The plasmacytoma caused weakness in the vertebral body which fractured when the applicant lifted the gate. The structural weakness in the vertebral body left the applicant vulnerable to a fracture caused by that trauma.
The applicant submitted that both a temporal and causal connection were present. With regard to the causal connection, the applicant referred to the commonsense approach described in Kooragang Cement Pty Ltd v Bates[1]. The applicant was at work, carrying out his employment duties when the fracture occurred. The fracture was caused by the trauma acting upon the weakened vertebra.
[1] (1994) 10 NSWCCR 796 at [810].
The applicant conceded that Dr Doig’s terminology was not legally correct. When Dr Doig referred to employment “aggravating” the plasmacytoma, what he really meant was that employment acted upon the condition. The applicant conceded that there was no evidence to suggest that the tumour was made worse by work.
The applicant submitted that employment was a substantial contributing factor to the injury. It was absurd to suggest that employment made no contribution at all. Although the highpoint of the respondent’s case was that there was a probability the injury could have happened outside of work, on the facts of this case, the injury in fact occurred whilst the applicant was at work performing his employment duties.
Respondent’s submissions
The respondent noted that the pleading of injury in the ARD referred to a fracture as a result of lifting a gate. The respondent submitted that the applicant in fact sustained a fracture due to a plasmacytoma.
The respondent noted that the applicant had been treated by numerous doctors yet not a single opinion on causation had been provided by the treating practitioners. The case amounted to a difference of opinion between Dr Doig and Dr Breit.
The respondent noted both the applicant’s statement evidence and the treating evidence confirmed that the applicant was diagnosed with a cancerous condition at the T5 vertebra. The radiological reports were described and it was noted that the treating evidence consistently referred to the occurrence of a “pathological fracture”. The respondent submitted that the broken vertebra occurred due to the disease rather than a work-related injury.
The respondent noted that its submission was supported by Dr Breit’s opinion. Dr Breit found the applicant had a pathological fracture due to the plasmacytoma. Dr Breit’s terminology was consistent with the treating evidence. The fracture was described as “inevitable” and it was “purely coincidental” that it happened at work.
The respondent noted that Dr Doig only referred to a CT scan without making reference to the other radiological reports considered by Dr Breit. Dr Doig did not consider or explain the significance of the term “pathological fracture”. The respondent submitted that a pathological fracture is not a fracture due to trauma but a fracture due to pathology in the cells within the bone marrow. The respondent submitted that Dr Doig did not provide an opinion that trauma acted upon the weakened cells. Dr Doig’s opinion was confused. The suggestion by Dr Doig that the cancerous condition was aggravated by employment was not supported by the treating evidence.
Dr Breit had undertaken a review of the relevant treating evidence, as well as Dr Doig’s opinion. Dr Doig gave an opinion that the applicant had a disease which would inevitably result in fracture. Employment was not contributing factor to the fracture and there was no work-related component. Dr Breit had provided a clear and reasoned opinion, and no opinion had been provided from the applicant’s treating practitioners to contradict Dr Breit’s opinion.
The respondent submitted that the Commission would accept Dr Breit’s opinion and find that employment was neither the main contributing factor nor a substantial contributing factor to the injury.
The respondent submitted that the fact that the condition was not symptomatic previously was not relevant. The pre-existing condition was significant and life threatening. Dr Breit’s opinions were clearly relevant to the considerations in s 9A(2)(d) and (e).
FINDINGS AND REASONS
Injury
Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is defined in s 4:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The expressions, “arising out of” and “in the course of” employment were considered in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[2] (Badawi) at [72]:
“Section 4 defines injury as ‘personal injury arising out of or in the course of employment’. The use of the disjunctive is significant, in that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9. It is established that the second limb of the definition ‘in the course of employment’ involves a temporal element and does not of itself contain a causative element. It was for that reason that Mr Zickar succeeded when his congenital aneurism ruptured when he was at work: Zickar v MGH Plastic Industries Pty. Difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but that arises not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances.”
The uncontradicted evidence in this case is that on 3 March 2021, the applicant was at his usual workplace performing his employment duties when he sustained a pathological fracture at the T5 vertebra.
[2] [2009] NSWCA 324 (8 October 2009); (2009) 7 DCR 75.
The applicant’s statement, the contemporaneous incident report and the histories provided to the medico-legal experts confirm that the applicant experienced a “pop” or “crack” associated with a sudden onset of pain in his upper back. The applicant has denied, and there is no suggestion in the evidence, that his upper back was symptomatic prior to this event.
Consistently with the applicant’s lay evidence the treating medical evidence including the radiological investigations confirm a fracture at T5. None of the medical evidence suggests that the fracture may have occurred at any time other than while the applicant was lifting the gate at work on 3 March 2021.
I am satisfied on the evidence therefore that the applicant sustained a personal injury, in the sense of a sudden pathological change (the fracture), whilst temporally “in the course of employment” on 3 March 2021 for the purpose of s 4(a) of the 1987 Act.
The presence of the pre-existing plasmacytoma does not alter this conclusion. The circumstances of this case are akin to those in Zickar v MGH Plastic Industries Pty Ltd[3] where the worker suffered brain damage due to the rupture, at work, of a congenital aneurism. The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held that the presence of a disease did not preclude reliance upon that event as a personal injury. Justices Toohey, McHugh and Gummow agreed with a passage in Accident Compensation Commission v McIntosh[4] that, “it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur” (at [262]).
[3] [1996] HCA 31.
[4] [1991] 2 VR 253.
Here, the personal injury was the T5 fracture, as distinct from the plasmacytoma which enabled it to occur.
Substantial contributing factor
In order for compensation to be payable in this case, the applicant must also satisfy s 9A of the 1987, which provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Subsection (3)(a) makes clear that the fact that injury occurred in the course of the worker’s employment, is insufficient to establish that employment was a substantial contributing factor to the injury.
In Kelly v Secretary, Department of Family and Community Services, Department of Corrective Services v Clifton[5] Emmett JA stated at [43]:
“The fact of the injury arising out of or in the course of the employment is relevant, but not determinative of itself, since both s 4 and s 9A must be satisfied. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors. Whilst the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder. Being an evaluative matter involving questions
of impression and degree, a finding as to relative contributing factors is a finding offact (Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [48]).”[5] [2006] NSWWCCPD 310.
In Mercer v ANZ Banking Group[6], Mason P observed:
“Here the word ‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue. Judge Bishop recognised this. At par 29 of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view this was the correct approach, remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane [1994] TASSC 73; (1994) 4 Tas R 156).”
[6] [2000] NSWCA 138.
In E-Dry Pty Ltd v Ker[7] Keating J observed,
“The assessment of whether the employment is a substantial contributing factor to the injury is not solely a medical question but a question which is based on ‘an assessment of all the evidence, lay and expert’ (Smith v Parkes Shire Council [2010] NSWWCCPD 130 (confirmed by Court of Appeal in StateCover Mutual Ltd v Smith [2012] NSWCA 27)).
Whether employment is a substantial contributing factor to an injury is a ‘question of fact and is a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348 (McMahon)) to be decided after a consideration of all the evidence’ (Duc Dien Tran v Salmat Document ManagementSolutions Pty Ltd [2008] NSWWCCPD 147 at [72]). This is an evaluative process (State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 at [72]). In Kernick, Acting Deputy President Snell (as he then was) said (at [31]):
‘In considering whether the Worker had suffered compensable injury in the employ of the Second Employer, it was necessary firstly for the Arbitrator to deal with the question of whether, on the evidence overall, he was satisfied an injury had occurred. If he was so satisfied, it was necessary that he consider the provisions of section 9A, in deciding whether the injury was compensable. Whether ‘the employment concerned was a substantial contributing factor to the injury’ for the purposes of section 9A is a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.’”
[7] [2017] NSWWCCPD 26.
Applying s 9A of the 1987 Act in the present case, I note that the injury, being the T5 fracture, occurred during the applicant’s normal work hours and at his normal place of employment.
The injury also occurred whilst the applicant was performing his work tasks. It has not been suggested that opening the gate to the yard where the applicant’s truck was kept was not part of the applicant’s work duties.
The applicant has described the size and weight of the gate and the particular manoeuvre required to open the gate. Although Dr Breit has suggested this manoeuvre was not “traumatic” it is readily apparent from the applicant’s description that it involved using force to lever up a large and heavy gate whilst also stretching and reaching up to remove a pin. I accept that this manoeuvre involved awkward positioning and some considerable exertion of force.
There is no controversy that the applicant had a pre-existing cancerous condition at the T5 vertebra. The medical evidence indicates that the plasmacytoma weakened the vertebral structure rendering it vulnerable to fracture. Dr Breit has given the opinion that it was “inevitable” that this condition would eventually weaken the vertebra to the point of fracture. Dr Breit said it was “purely coincidental” that the fracture occurred whilst the applicant was at work. Dr Breit said the pathological fracture could have occurred with only trivial force or spontaneously.
This opinion is clearly relevant to the considerations at ss 9A(2)(d) and (e).
I accept on Dr Breit’s opinion that there was a high probability that the injury would have occurred at some stage in the applicant’s life whether he had been at work or not. I am not, however, satisfied that Dr Breit’s opinion goes so far as to say that the injury would have occurred at the “same” time or stage of life.
Dr Breit does not give specific consideration to the positioning and forces involved in opening the gate. He does not say whether those forces may have brought forward the “inevitable” fracture.
The factual evidence before me does not suggest that the fracture occurred spontaneously in the applicant’s case. I am also not satisfied that the forces involved in opening the gate are appropriately described as trivial or akin to simply bending over to tie one’s shoelaces. The factual material does not suggest to me that the occurrence of the fracture at work on 3 March 2021 was “coincidental”. Rather it suggests that the mechanism of opening the gate, which was heavy and awkward, contributed to the occurrence of the fracture at that particular moment in time.
I do accept that the underlying disease condition was a substantial contributing factor to the fracture and probably even the main contributing factor to the fracture. Such findings would not, however, preclude a finding that employment was also “a substantial” contributing factor.
In considering the evidence before me, I have given weight to the respondent’s submission that Dr Doig’s opinion is unclear or confused and does not go so far as to state that the trauma involved in lifting the gate acted upon the weakened cells causing the fracture. The applicant has conceded as much in his own submissions.
Determination of whether employment is a substantial contributing factor is not, however, a purely medical question. It is a question which requires assessment of all the evidence.
Whilst I accept that the applicant’s submissions do not find clear and direct support in Dr Doig’s reports, I accept that the opinions expressed therein are broadly consistent with the applicant’s case.
Dr Doig took a clear history of the event on 3 March 2021 and the task the applicant was performing when he experienced a sudden onset of pain. Dr Doig was clearly alert to the pre-existing plasmacytoma and its effect on the vertebral body. Dr Doig was aware that the fracture had been described in the treating evidence as a “pathological fracture”.
Nonetheless, Dr Doig found that the vertebral collapse occurred after levering the heavy gate “aggravated” the plasmacytoma. This language is suggestive of a s 4(b)(ii) injury, which is not relied on by the applicant. Dr Doig does not explain what he meant by the plasmacytoma being “aggravated”. The applicant submits, and I accept, that Dr Doig could not have meant that the tumour itself was made worse or symptomatic by the levering of the gate. That suggestion would be inconsistent with all of the treating medical evidence.
It is tolerably clear, reading Dr Doig’s report as a whole, that he was of the opinion that the levering of the gate acted upon the vertebra which had been weakened by the plasmacytoma causing the fracture. Having regard to the question to which this response was given, it is also tolerably clear that Dr Doig considered employment was at least “a substantial” contributing factor.
I have also noted the respondent’s submission that the applicant has not obtained any opinion on causation from his treating doctors. It is the applicant who bears the onus of proof and his case would have been materially assisted by a clearer opinion from Dr Doig and an opinion on causation from a treating doctor.
These deficiencies in the applicant’s evidence are not, however, fatal.
Weighing the relevant considerations in s 9A(2), noting in particular the time and place of the injury, the particular employment task the applicant was engaged in at the time of the injury and the forces involved, I am satisfied that employment was a substantial contributing factor to the injury.
I do not accept that this finding is inconsistent with the diagnosis of a “pathological” fracture. The presence of the plasmacytoma was clearly a major if not the main contributing factor to the fracture. The test in s 9A does not, however, require the dichotomy suggested by the respondent’s submissions or Dr Breit’s opinions.
The applicant satisfies both ss 4(a) and 9A of the 1987 Act. It is appropriate that the matter be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the injury.
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