Henry v Pizza Pro Pty Limited

[2023] NSWPIC 275

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Henry v Pizza Pro Pty Limited [2023] NSWPIC 275
APPLICANT:	Tex Henry
RESPONDENT:	Pizza Pro Pty Limited
Member:	Stephen Churches
DATE OF DECISION:	13 June 2023
CATCHWORDS:	WORKERS COMPENSATION - The applicant suffered a number of injuries when assaulted by persons in the course of his employment as a pizza delivery person on 9 May 2017; injuries to his cervical spine, left upper limb (wrist), left upper limb (shoulder), left upper temporomandibular joint (TMJ) and a psychological injury were accepted by the respondent; Held – the applicant did not injure his thoracic spine in the course of his employment on 9 May 2017.
determinations made:	1.     The applicant did not injure his thoracic spine in the course of his employment on 9 May 2017.

STATEMENT OF REASONS

BACKGROUND

1. The applicant suffered a number of injuries when assaulted by persons in the course of his employment as a pizza delivery person on 9 May 2017.

2. Injuries to his cervical spine, left upper limb (wrist), left upper limb (shoulder), left upper temporomandibular joint (TMJ) and a psychological injury were accepted by the respondent.

ISSUE FOR DETERMINATION

1. The parties agree that the following issue remains in dispute:

   (a)     whether or not the applicant injured his thoracic spine in the assault referred to above.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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. 

2. The parties attended a hearing on 8 May 2023. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

   (a)    Application to Resolve a Dispute and attached documents, and

   (b)    Reply to Application to Resolve a Dispute (Reply) and attached documents.

Oral evidence

1. There was no oral evidence given.

FINDINGS AND REASONS

1. Mr Loukas who appeared for the respondent argued that there was no complaint of thoracic pain for some four years or more until after the assault the applicant suffered when delivering pizza.

2. This appears to be correct.

3. Mr Goodridge conceded this but says that was because his doctors were not listening to his complaints. Once the cardio-vascular problems were dealt with it became clear it was his thoracic spine that was causing the problems.

4. Further, the applicant stated that the medication was not reducing his pain levels but this must also refer to the also accepted conditions of his, neck, the TMJ joint, the left shoulder and the upper wrist.

5. Mr Loukas says there was no earlier complaint about his thoracic spine, because were no problem with it and there was no cause for complaint.

6. There is no doubt the first real complaint about the thoracic spine was to Dr Hopcroft who examined the applicant for an in independent medical examination in October 2021 some four years after the injury.

7. Dr Hopcroft says there was a disc lesion in the thoracic spine, caused by the injury at work delivering pizzas.

8. He based this on an MRI scan taken on 4 August 2021.  That report which says there may be a compression fracture the radiologist thinks it was osteoporotic in nature.

9. Mr Loukas compared the MRI scan in 2021 to a bone scan taken in October 2019 and the bone scan showed no finding of a disc lesion osteoporotic or not.

10. Mr Goodridge says there was a complaint of thoracic spine from the applicant treating neurologist Dr Raj Reedy in 2020.  There was indeed such a reference but it referred to pain into the thoracic region from the cervical region.

11. Mr Goodridge also referred to a diagram on page 111 of the Reply which does show what appearances to be a pain level in the cervical brachial area somewhere close to the thoracic spine area, not but actually in that the thoracic area, but adjacent to it. This I think supports the finding of Dr Reedy, there was pain in that area coming from the cervical spine.

12. I have read carefully the medical evidence provided by the parties.   In particular the bone scan referred to in October 2019, some two years after the incident does taken into account the thoracic spine but does not does not mention any problem with the thoracic spine and makes no mention of any problem with the thoracic spine which may or may not have a disc lesion in the thoracic spine.

SUMMARY

1. I have no doubt the applicant has pain in his thoracic region but due to the reasons set out above I have some doubts as to whether or not it relates to any injury at work.

2. I therefore find that there is no injury to the thoracic spine caused by his employment.