Hernandez v State Rail Authority of NSW
[2022] NSWPIC 393
•20 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hernandez v State Rail Authority of NSW [2022] NSWPIC 393 |
| APPLICANT: | Alberto Hernandez |
| FIRST RESPONDENT: | State Rail Authority of NSW |
SECOND RESPONDENT: | Adstock Pty Limited |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Matter remitted for determination by a Member following decision of Deputy President (DP) Wood in Hernandez v State Rail Authority if NSW; in issue was whether the applicant’s requirement for treatment of a renal condition and a cardiac condition was consequent upon undisputed injuries that the applicant sustained to his back in the employ of the first respondent over the period from 18 December 1972 to 18 December 1987 and in the employ of the second respondent on 27 April 1992; the applicant also claimed that treatment for hypertension the onset of which pre-dated the 1987 back injury and subsequent surgery therefor, and in respect of which Wood DP had entered an award in favour of the respondents in response to the applicant’s claim that the renal and cardiac condition resulted from his hypertension, materially contributed to the renal and cardiac condition; the applicant relied on a detailed examination of the clinical records and reports of treating specialists in support of his case; Held –the applicant could not argue that medication for his hypertension had contributed to the renal and cardiac conditions; this matter had been dealt with by the Personal Injury Commission, by the Member at first instance, and in Wood DP’s determination affirming that decision; finding that the applicant had not produced evidence to demonstrate, on the balance of probabilities, that as a result of ingestion of medication for his undisputed back injuries, he suffered a renal condition or a cardiac condition consequent upon those back injuries; held that the applicant had not established that the applicant’s renal condition and his cardiac condition resulted from injuries to the back arising out of and in the course of the applicant’s employment with the first respondent on18 December 1973,16 August 1976 and 8 December 1987 in the employ of the first respondent and on 27 April 1992 in the employ of the second respondent; award for the respondents in respect of the applicant’s claim for expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for treatment of the applicant’s renal condition and cardiac condition; applicant granted liberty to apply if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to section 60 of the 1987 Act in respect of any claim that the applicant may have for expenses for treatment of aggravation of a pre-existing condition of hypertension which became labile in 2001 and 2005. |
| DETERMINATIONS MADE: | 1. The applicant has not established on the balance of probabilities that the renal condition and his cardiac condition from which he suffers results from injuries to the back arising out of and in the course of the applicant’s employment with the first respondent on18 December 1973,16 August 1976 and 8 December 1987 and on 27 April 1992 in the employ of the second respondent. 2. Award for the respondents in respect of the applicant’s claim for expenses pursuant to s 60 of the Workers Compensation Act 1987 for treatment of the applicant’s renal condition and cardiac condition. 3. Liberty to apply, if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to s 60 of the Workers Compensation Act 1987 in respect of any claim that the applicant may have for expenses for treatment of aggravation of a pre-existing condition of hypertension which became labile in 2001 and 2005. |
STATEMENT OF REASONS
BACKGROUND
This matter comes back before the Personal Injury Commission (the Commission) following a hearing before Member Sweeney on 21 January 2021 and 22 March 2021, his Certificate of Determination and Statement of Reasons dated 2 June 2021[1], and as a result of an appeal from the determination of Member Sweeney by Alberto Hernandez (the applicant), the determination of Deputy President Wood on 17 February 2022[2].
[1] Hernandez v State Rail Authority of NSW [2021] NSWPIC 159 (Hernandez 1).
[2] Hernandez v State Rail Authority if NSW [2022] NSWPICPD 5 (Hernandez 2).
The applicant suffered several low back injuries in the course of his employment with the State Rail Authority of NSW (the first respondent) in 1973, 1976 and on 8 December 1987. Deputy President Wood in Hernandez 2 noted that the first two injuries appeared to be relatively minor. However, the injury in 1987, together with a further low back injury in the course of the applicant’s employment with the Adstock Pty Ltd (the second respondent) significantly impacted the applicant’s capacity for work and required ongoing treatment.
The applicant has been in receipt of an award of weekly payments made by the former Compensation Court of NSW from 10 May 1994. The applicant was also awarded compensation for treatment expenses and a lump sum in respect of the permanent impairment of his back and the associated pain and suffering, Liability for compensation was apportioned between the two respondents. In further proceedings in the former Workers Compensation Commission the applicant received awards in his favour for further lump sum entitlements and treatment expenses. In 2015 the Workers Compensation Commission determined that the appellant met the definition of being a “seriously injured worker” within the meaning of s 32A of the Workers Compensation Act 1987 (the 1987 Act).
In the current proceedings, commenced in the Workers Compensation Commission but as a result of the enactment of the Personal Injury Commission Act 2020 (the 2020 Act) now continued as from 1 March 2021 as a matter within the Workers Compensation Division of the Personal Injury Commission (the Commission), the applicant claims treatment expenses incurred by him in respect of treatment for conditions in both shoulders, hypertension, and renal and cardiac conditions. The applicant contends that those conditions all result from the low back injuries and thus the treatment for the conditions is compensable. The respondents dispute that the conditions are consequential upon the accepted back injuries.
In Hernandez 1, Member Sweeney accepted that the applicant’s condition of hypertension, which he determined was pre-existing, was aggravated by the low back injury, causing elevated symptoms in 2001 and 2005. Member Sweeney did not accept that the applicant suffered from consequential conditions in the shoulders or renal or cardiac conditions as a result of the low back injuries. He further determined that he was not satisfied that the applicant’s need for treatment of those conditions resulted from the back injury.
The Certificate of Determination of Member Sweeney dated 2 June 2021 is in the following terms:
“1. The applicant suffered injuries to his back arising out of and in the course of his employment with the first respondent on18 December 1973,16 August 1976 and 8 December 1987 in the employ of the first respondent and on 27 April 1992 in the employ of the second respondent.
2. As a result of these injuries the applicant aggravated a pre-existing condition of hypertension which became labile in 2001 and 2005.
3. The applicant has not established that he suffered a consequential medical condition of his shoulders or consequential cardiac or renal conditions as a result of the injuries in 1 above or that the need for treatment of these conditions result from these injuries.
4. Liberty to apply, if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to section 60 in accordance with order 2.”
In Hernandez 2, Deputy President Wood made the following orders on appeal:
“1. The Member’s Certificate of Determination dated 2 June 2021, paragraphs 1 and 2 are confirmed.
2. The Certificate of Determination, paragraphs 3 and 4 are revoked and in their place the following orders are made:
(a)Award for the respondents in relation to the allegation that the applicant’s bilateral shoulder conditions resulted from the injury;
(b)(b) Award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension;
(c)(c) The matter is remitted to another member for determination of whether the applicant’s
(i)renal condition, and
(ii) cardiac condition
resulted from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992.”
The matter was remitted to me for determination. It was the subject of a telephone conference on 23 March 2022 at which the parties were directed to lodge and serve brief written submissions outlining their respective cases, and the matter was stood over for conciliation/arbitration on 18 May 2022. Arbitration hearing was not completed on that day, with the applicant only being able to complete his oral submissions. Further directions for written submissions from the respondents, and from the applicant in reply, were issued and amended such that all submissions were lodged and served by 13 July 2022.
PROCEDURE BEFORE THE COMMISSION
At the arbitration hearing on 18 May 2022 Mr Adhikary of counsel appeared for the applicant briefed by Miss Chan. The applicant was present. Mr Perry of counsel appeared for the first respondent briefed by Mr Hammond. Ms Goodman of counsel appeared for the second respondent briefed by Mr Lee. A representative of the second respondent’s insurer attended.
ISSUES FOR DETERMINATION
The following issue remains in dispute in accordance with Order 2(c) made on appeal by Deputy President Wood in Hernandez 2:
Did the applicant’s:
(a) renal condition, and
(b) cardiac condition
result from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992?
The applicant submits that his case with respect to these two conditions “…is effectively that they were sustained as a result of the lumbar spine injuries, and this includes being as a result of the hypertension.” (emphasis added) His case includes the assertion that the ingestion of medication for the treatment of his injuries and conditions materially contributed to his renal and cardiac conditions[3]. The applicant emphasises this assertion in oral submissions on 18 May 2022, saying:
“Effectively this is the applicant’s case Member. The control or the poor control of the applicant’s hypertension by way of the medications that he’s been prescribed had a material contribution to the disputed conditions.”[4]
[3] Applicant’s written submissions dated 21 April 2022 at [6]-[7].
[4] Transcript 18 May 2022 (T) pp 31.30 - 32.15.
The reference to treatment for hypertension, in addition to treatment for his back injuries, as being causative of the renal condition and cardiac condition, is strongly contested by the respondents. The first respondent submits that the error into which Member Sweeney fell is most specifically articulated in the final two sentences of [192] of Hernandez 2. Those sentences follow the Deputy President’s acknowledgement that the Member was correct to find that the applicant had not established that aggravated hypertension had made a material contribution (to the renal and cardiac conditions). The first respondent notes the Deputy President’s final two sentences in [192] as follows:
“However, he (Member Sweeney) did not take into consideration the allegation that the medication prescribed to the appellant to treat the appellant’s back injuries materially contributed to the appellant’s renal condition. Nor did he give consideration to whether the medication prescribed to treat the back injuries materially contributed to the cardiac condition.”[5]
(emphasis in submission)
[5] First respondent’s written submissions dated 5 June 2022 at [18].
The second respondent adopts the first respondent’s written submissions dated 5 June 2022.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply of the first respondent and attached documents;
(c) Reply of the second respondent and attached documents;
(d) Application to Admit Late Documents (AALD) dated 12 November 2020 lodged by the applicant and attached documents;
(e) AALD dated 14 January 2021 lodged by the first respondent with report of Dr Conrad Winer dated 21 October 1988 attached;
(f) AALD dated 18 January 2021 lodged by the applicant with further statement of applicant dated 16 January 2021 attached;
(g) AALD dated 28 January 2021 lodged by the first respondent with report of A/Prof Richard Haber dated 15 January 2021 attached;
(h) AALD dated 6 May 2022 lodged by the applicant with the following attachments:
(i)transcript of the hearing before Arbitrator Sweeney (as he then was) of 21 January 2021, and 22 March 2021;
(ii)applicant’s written submissions dated 7 May 2021, and
(iii)schedule of expenses pursuant to s 60 of the 1987 Act;
(i) applicant’s written submissions dated 21 April 2022;
(j) first respondent’s written submissions dated 12 May 2022;
(k) second respondent’s written submissions dated 11 May 2022;
(l) first respondent’s written submissions dated 5 June 2022, (following applicant’s submissions given orally on 18 May 2022);
(m) second respondent’s written submissions dated 29 June 2022, and
(n) applicant’s written submissions in reply dated 12 July 2022.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
The applicant’s oral submissions made 18 May 2022 are recorded, a transcript of which can be obtained on request. The written submissions of the parties, made before and after the hearing of 18 May 2022, are referred to at [14(i)-(n)] above. In summary, they are as follows.
Applicant
In his written submissions dated 21 April 2022 the applicant submits that there is no dispute pertaining to the fact that his hypertension was causally related, that is as a result of, his lumbar spine injuries. Member Sweeney determined that this condition is so causally related.
The applicant submits that this is evident from
(a) order [2] in the Certificate of Determination dated 2 June 2021;
(b) [80] of the Statement of Reasons, and
(c) [4], [95] and [196] of the decision of Wood DP in Hernandez 2.
The applicant submits that neither respondent has sought to challenge this finding since it was made, nor have they notified the applicant that it is disputed.
The applicant submits that the liability issues which remain pertain to the renal condition and cardiac condition, and whether they arose as a result of the accepted lumbar spine injuries. The applicant makes the submission referred to in [11] above.
The applicant then refers to the evidence on which he relies, including his statement dated 10 August 2018, the report of Dr Herman dated 3 August 2017, and evidence from his treatment providers, including:
(a) the clinical records of DMC Medical Centre;
(b) A/Prof Gillan;
(c) Dr Killian;
(d) Dr Puranik;
(e) Dr Llsar, and
(f) Dr Garrick.
In submissions on 18 May 2022 counsel for the applicant referred to numerous entries in the clinical records of the DMC Medical Centre, and the reports of the other treating practitioners noted in [21] above, that he submits demonstrates a link between treatment for the applicant’s undisputed injury to his back and for the hypertension from which the applicant suffers, and for the renal and cardiac conditions. This link was provided in the form of ingestion of medication for the back injury and for hypertension. The submissions were made with reference to the material in evidence in the current proceedings and to the submissions which Mr Adhikary made to Member Sweeney at the hearings before him on 21 January 2021 and 22 March 2021, and the transcript of the proceedings on those days[6].
[6] AALD 6 May 2022.
In submissions made on 18 May 2022, counsel for the applicant confirmed his assertion that the matter that had been remitted for determination by Wood DP in the following terms:
“…the substance of the dispute is what I’ve already said. It includes the material contribution made by the ingestion of medication for hypertension. Now, what also supports that submission, Member, is the fact that the dispute that’s been sent to you for redetermination includes – well, determining whether the renal condition and the cardiac condition resulted from the applicant’s injuries to the back.
Now, that doesn’t exclude the hypertension, the totality in the context of this matter, Member. It includes the hypertension in and of itself, I accept that, and I’m not cavilling with that but the hypertension has been determined to be related to – or a consequential condition related to the applicant’s back…”[7]
[7] T p 18.10-18.25.
This submission was confirmed by the applicant by reference to what Wood DP said at [193] of Hernandez 2 as follows:
“The Member failed to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension.”[8]
[8] T p 20.30-21.05.
First respondent
In its written submissions dated 12 May 2022 the first respondent submits that the relationship between hypertension and the cardiac and renal conditions has been dealt with, adversely to the applicant, by Member Sweeney, and in that respect the Member’s determination has been affirmed by Wood DP. Member Sweeney’s determination is to be found at [93] of his reasons, which includes the following “…the Commission is unable to conclude that the applicant’s renal or cardiac conditions are consequential on his back injuries or that the need for medical treatment of these conditions result from the accepted back injuries.”
The first respondent submits that Wood DP rejected the applicant’s assertion that Member Sweeney had erred in determining that it was impossible, on the evidence, to determine whether the renal and cardiac condition was caused by the aggravation of the applicant’s hypertension. This rejection is found in [179]-[182] of Hernandez 2. The first respondent submits that Wood DP went further than did Member Sweeney and at [200] entered an award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension.
The first respondent notes that Wood DP did observe that Member Sweeney had not taken into account the proposition that the medication prescribed to the applicant to treat his back injuries had materially contributed to his renal condition or to his cardiac condition. It is clear then, according to the first respondent, that hypertension, even aggravated hypertension, is not available to the applicant to support for an assertion that there is a link between the injuries to the applicant’s back and his renal and cardiac conditions.
The first respondent submits that, even if the applicant should establish that medication for hypertension has made a material contribution to either his renal condition or his cardiac condition, that does not overcome the proposition that the determination of the presidential unit precludes a conclusion that the medication provides a link between the injury and either of those conditions.
The first respondent adopts arguments made by the second respondent as to the absence of any persuasive evidence of any link between the injury sustained by the applicant and the medication asserted to have contributed to his cardiac and renal conditions.
The first respondent also adopts, as it did before Member Sweeney, the second respondent’s written submissions dated 15 April 2021, and in particular the points made from [53]-[67] [sic, [57]]. In those submissions the second respondent deals with contents of the report of Dr Mark Herman dated 3 August 2017[9] and his discussion of the cardiac condition from which the applicant suffered at that time, whether it was aortic dilation or mitral regurgitation. In respect of neither condition does Dr Herman provide an opinion that it results from the applicant’s accepted back condition.
[9] ARD p 97 (noting that page references in these Reasons are to those in the electronic records of the Commission).
The first respondent notes additionally that the condition being managed by Dr Gillin is identified by Dr Puranik as hypersensitive nephrosclerosis[10] (emphasis in submissions), that being progressive kidney damage caused by long-standing poorly-controlled high blood pressure (again, hypertension).
[10] ARD p 145.
Second respondent
In its written submissions dated 11 May 2022 the second respondent rejects the applicant’s submission that there is no dispute that his hypertension is causally related to his lumbar spine injuries for the following reasons:
(a) Member Sweeney was satisfied that as a result of the back injuries the applicant aggravated a pre-existing condition of hypertension which became labile in 2001 and 2005;
(b) Member Sweeney was unable to determine whether the applicant’s need for treatment for his hypertension resulted from the progression of the underlying condition or to that condition as aggravated by the back injury and its sequelae;
(c) Wood DP noted that Member Sweeney accepted that the applicant’s condition of hypertension, which the Member found was pre-existing, was aggravated by the low back injury, causing elevated symptoms in 2001 and 2005;
(d) Wood DP noted that the Member concluded that the applicant’s back injuries materially aggravated the applicant’s hypertension in 2001 and 2005, but that the applicant had failed to establish on the balance of probabilities that the renal and cardiac conditions resulted from the accepted back injuries;
(e) Wood DP further noted that the Member’s finding that the applicant suffered aggravation of his pre-existing hypertension is not challenged in the appeal, and
(f) Wood DP entered an award for the respondents in respect of the allegation that the applicant’s renal and cardiac conditions resulted from his hypertension.
The second respondent therefore submits that it is not open to the applicant to argue that there is no dispute that the applicant’s renal and cardiac conditions are causally related to his hypertension.
The second respondent submits that the only matter referred for determination is whether the applicant’s renal condition and his cardiac condition resulted from his back injuries on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992.
The second respondent submits that Wood DP confirmed the determinations of Member Sweeney that he was not satisfied that the applicant’s renal and cardiac conditions resulted from the hypertension. The Deputy President in fact entered an award for the respondents in respect of the allegation that the applicant’s renal and cardiac conditions resulted from the applicant’s hypertension.
The second respondent does not accept that, as claimed by the applicant, his case “includes” the ingestion of medication for treatment of his injuries and conditions. The applicant cannot rely upon medication for hypertension because of the award that has already been entered against him. He can only rely upon the medication for treatment of his back injury.
The second respondent submits that there is no medical evidence that supports the proposition advanced by the applicant that his renal and cardiac conditions result from his back injuries.
The second respondent submits that the only opinion in support of the applicant’s case is that of Dr Herman in his report dated 3 August 2017 which is based on an incorrect history. That incorrect history is in respect of the aetiology of the applicant’s condition of hypertension, and for this reason Dr Herman’s opinion ought to be given no weight.
The second respondent also submits that it is unclear as to what cardiac condition the applicant contends resulted from his back injuries, aortic dilation, mitral valve regurgitation or something else. There is no specific medical evidence in support of either or both these conditions having resulted from the applicant’s back injuries.
The second respondent submits that there is no evidence from any of the applicant’s treating specialists to support his contention that his renal condition results from his back injuries. A/Prof Gillan at no time expressed an opinion regarding causation of the applicant’s renal condition despite the doctor seeing the applicant on a regular basis. There is therefore no opinion from a renal specialist that the renal condition results from that applicant’s accepted back injuries. In addition, there is no explanation as to why there is no evidence addressing the issue from the many specialists who have treated the applicant over the years.
First respondent’s written submissions dated 5 June 2022 in response to the applicant’s submissions given orally on 18 May 2022
The first respondent submits that the following statement by counsel for the applicant:
“So Member Sweeney, you can see from the COD, did not turn to the submissions which Deputy President Wood confirmed he did not which was that the effect of the treatment of the applicant’s hypertension had a material contribution to his renal and cardiac conditions”[11]
is quite wrong. In [93] of Hernandez 1, Member Sweeney specifically acknowledged that there had been aggravation of the applicant’s hypertension as a result of his back injuries.
[11] T p 14.10.
The first respondent submits that, critically, the applicant, with the onus on him failed to bring evidence to satisfy the Commission that his renal and cardiac conditions were the result of the aggravations in 2001 and 2005 of his hypertension. That was affirmed by Wood DP who took the further step of entering an award in favour of the respondents at [200(b)] of Hernandez 2.
The first respondent submits that it is not open to the applicant to assert that the medication for his exacerbated hypertension (such as might, for example, have been made necessary on 2001 and 2005 when the applicant’s hypertension has been labile, as Member Sweeney found at [80] of Hernandez 1) has contributed to his renal condition or his cardiac condition. Member Sweeney found at [80]:
“However, their continuing effect upon the applicant’s hypertension is uncertain. It is unclear whether the applicant’s need for treatment for his hypertension results from the progression of the underlying condition or to that condition as aggravated by the back injury and its sequelae.”
The first respondent submits it is clearly that observation by Member Sweeney that led him to reject the allegation of a causal link between the accepted physical injuries and the applicant’s renal and cardiac conditions. Wood DP found at [192] that the Member was entitled to find on the evidence before him that there was insufficient evidence to establish that the aggravated hypertension materially contributed to the renal condition. Clearly, from the award at [200], the Deputy President acknowledged that this failure on the applicant’s part extended to the assertion of a link between the hypertension, even as exacerbated in 2001 and 2005, and the applicant’s renal and cardiac conditions.
The first respondent submits that Member Sweeney, between [56] and [81], and more specifically between [79] and [81] dealt with the aspect of the applicant’s case that the effects of treatment for hypertension had a material contribution to the renal and cardiac conditions.
The first respondent submits that the error into which Member Sweeney fell is most specifically articulated by Wood DP in [192] of Hernandez 2, that is, he did not give consideration to whether the medication prescribed to treat the applicant’s back injuries contributed to his renal condition and his cardiac condition. The first respondent submits that the applicant is permitted to argue that medication for the back injuries may have contributed to the renal or cardiac conditions. The applicant may not argue that medication for his hypertension had contributed to the renal or cardiac conditions. That matter has been dealt with by the Commission.
The first respondent theorised that counsel for the applicant may have been misled by words of Wood DP in the last sentence of [193] in Hernandez 2, namely:
“It follows that the Member erred by failing to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension.”
(emphasis in submissions)
The use of this expression is used in the context of Wood DP confirming that while it was open to Member Sweeney to reject, as he was entitled to do, the causal link between medication for hypertension and the renal and cardiac conditions, he failed to give due consideration to another possible link, namely medication for the back injury making a direct contribution to either the renal or cardiac condition.
The first respondent submits that there in clear consistency between the findings of Wood DP at [192] and her award at [200(b)] of Hernandez 2.
The first respondent then deals with the report of Dr Herman dated 3 August 2017, relied upon by the applicant to support a link between medication prescribed to treat the back condition and his cardiac condition. The first respondent refers to an answer Dr Herman provided to a question as to whether any incapacity suffered by the applicant is the result of a workplace incident. The first respondent submits that it is quite clear from the answer that the only link between medication and the applicant’s cardiac condition was the doctor’s opinion that medication, in particular anti-inflammatory usage, had made a contribution to the applicant’s hypertension, and that hypertension may have contributed to a cardiac condition.
The first respondent submits that Dr Herman, the cardiac specialist, did not make explicit the diagnosis he reached on the applicant’s cardiac condition, although a diagnosis may be evident from the doctor’s inferential acceptance of the October 2016 echocardiogram.
The first respondent submits that there is nothing in the report of the echocardiogram to suggest that a condition might have resulted from medication prescribed to treat the applicant’s back condition.
Dr Herman’s evidence is, according to the first respondent, to the effect that the link between and pain medication and a cardiac condition is strictly through hypertension. Therefore his evidence does not assist that applicant’s case.
The first respondent also deals with the medical evidence relied upon by the applicant to support a link between pain medication and the renal condition. The first respondent submits that the applicant requires, and lacks, the evidence of an expert to the effect that the ingestion of medication prescribed for the applicant’s back injury has made a material contribution to the necessity for treatment of a renal condition, citing Murphy v Allity Management Services Pty Ltd[12] (Murphy).
[12] [2015] NSWWCCPD 49 (Murphy) at [57] and [58].
Second respondent’s submissions dated 29 June 2022
The second respondent adopts the first respondent’s written submissions dated 5 June 2022.
In addition, the second respondent makes the following submissions.
The applicant argues that the aclasta infusion for osteoporosis was treatment for his back injury and since Dr Pope had indicated that his kidney function deteriorated with aclasta infusion, that this was an instance of treatment for the back injury causing a deterioration in the applicant’s kidney function[13].
[13] T p 39.15-41.26.
In addition the applicant argues that the Reandron treatment (a testosterone replacement) was treatment for his physical condition[14].
[14] T p 42.
The second respondent submits however that at [86] of Hernandez 1, Member Sweeney accepted the second respondent’s submissions that there was no evidence that an aclasta infusion (for osteoporosis) or Reandron treatment (a testosterone replacement) resulted from his back injury.
The applicant did not appeal from this aspect of Member Sweeney’s decision and it is therefore not now open for the applicant to re-agitate this matter, it having already been determined by the Member.
Applicant’s written submissions dated 12 July 2022 in reply to the written submissions of the first respondent dated 5 June 2022
The applicant notes that neither respondent has grappled with the substance of the applicant’s case, and that the Commission would have no difficulty in accepting that his renal condition and cardiac condition were causally related to either his back injury or treatment for his hypertension.
The applicant continues to rely on [193] of Hernandez 2 and the submissions made at the arbitration hearing on 18 May 2022, to indicate that the issue of whether the applicant’s renal and cardiac (emphasis in submissions) conditions were consequential upon the treatment of the applicant’s hypertension is a live issue in the proceedings.
The applicant submits that the assertions made by the first respondent in its submissions at [11]-[13] (referred to above at [43]-[44]) are misconceived. The applicant submits that [80] of Hernandez 1 pertained to his hypertension condition and not (emphasis in submissions) the cause of the renal and cardiac conditions.
The applicant submits that [11]-[13] of the first respondent’s submissions and [80] of Hernandez 1 do not negate what was submitted on his behalf that the issue of whether treatment of his hypertension materially contributed to his renal and cardiac conditions.
The applicant submits that at [17] of the first respondent’s submissions (referred to above at [45]) suffers from the same issues as highlighted above.
The applicant submits that “There is no dispute in these proceedings pertaining to the fact that the Applicant’s hypertension was causally related i.e. as a result of his lumbar spine injuries.”
The applicant submits that there is no distinction drawn by Wood DP when she used the words in [193] “and/or hypertension”. The applicant submits: “Rather, they are inclusive and the sentence in which those words appear at (sic, is?) conjunctive.” The applicant quotes the sentence, and submits that it is not open to suggest the inclusive words “and/or” do anything other than include the issue of treatment of the hypertension as being matters Member Sweeney failed to determine.
The applicant submits furthermore that the respondents fail to grasp the fact that the hypertension was causally related to his back injury. Therefore, treatment of the back injuries included treatment of the hypertension condition that was caused by the back injury itself.
The applicant submits that when viewed from this perspective, there can be no doubt that the last sentence of [193] of Hernandez 2, demonstrates the issue of whether the cardiac and renal conditions were causally related to treatment of the applicant’s hypertension and back injury remains in dispute, and no inconsistency arises.
On the issue of whether the medical evidence supports a link between pain medication and cardiac condition, the applicant submits that the first respondent has not grappled with the applicant’s case, and that neither respondent has addressed the applicant’s lay evidence, not the substantial treating evidence to which the Commission was taken in detail. The totality of the evidence, which includes the treating evidence, lay evidence, and the medico-legal evidence of Dr Herman, demonstrates the applicant’s cardiac condition was causally related to:
(a) the applicant’s back injury, and/or
(b) treatment of the applicant’s hypertension.
The applicant submits that whilst it is clear from the totality of the submissions he made, he highlights the submissions made at the arbitration at T44.31-45.26.
The applicant submits that the first respondent’s submissions at [29], to the effect that there is nothing in the report of the echocardiogram of October 2016 to suggest a condition that might have resulted from medication prescribed to treat the applicant’s back condition (referred to above at [50]-[51]), are not factually accurate when viewed from the basis of all the evidence before the Commission and on which the applicant relies.
The applicant submits that even if the Commission does not accept the submissions made in relation to the treatment of hypertension either being open to be raised in the proceedings or materially contributing to the disputed conditions (including the cardiac condition), the treating evidence makes it clear that the back injury (including treatment for same) had a material contribution to the disputed conditions.
On the issue as to whether the medical evidence supports a link between pain medication and the renal condition, the applicant submits that [34] of the first respondent’s submissions, referred to above at [53], is misconceived and internally inconsistent. The applicant submits that, in accordance with what was held in Murphy, causation for the disputed conditions does not have to be the only, or even a substantial, cause of a condition. The applicant refers to the “commonsense test of causation” in respect of a finding as to whether the disputed conditions are causally related to the accepted injury and/or treatment of the hypertension. The applicant submits the first respondent’s assertion that the applicant requires the evidence of an expert should be rejected for the following for the following reasons:
(a) in civil proceedings it is the task of the Commission to decide the matter on the basis of the whole of the evidence (B-Lo Pty v Brown[15] and Chanaa v Zarour[16]);
(b) the applicant is not required, in civil proceedings, to have corroboration in order to succeed (Chanaa) and the first respondent’s submissions suggest that he does, and
(c) neither the first nor second respondent has submitted that, treating the evidence as a whole, or lay evidence relied upon to substantiate causation for the consequential conditions, ought to not be accepted.
[15] [2013] NSWWCCPD 66.
[16] [2011] NSWWCCPD 199 (Chanaa).
The applicant quotes the well-known statement of Kirby P at [464A] in Kooragang Cement Pty Ltd v Bates[17] that:
“In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
[17] (1994) 35 NSWLR 452 (Kooragang v Bates).
The applicant submits that the clinical entries referred to by the first respondent at [35] and [36] of its submissions, dealing with entries in the notes of Dr Kumar, support the applicant’s allegations and emphasis that causation is established in this matter.
The applicant submits that the first respondent did not refer to the totality of the other treating evidence, and lay evidence referred to by the applicant, nor did it refer to the entry of 24 December 2002 at p 903 of the ARD in which is recorded that the applicant stopped taking pain killers because of his kidneys. The applicant also makes submissions as to the reference of “+/-“ in the entry and submits that the first respondent has not attempted to grapple with the substance of this entry, and indeed any of the other entries or treating evidence referred to.
The applicant submits that the first respondent has not attempted to rely on any medical evidence to suggest that “+/-“ suggests anything adverse to the applicant’s case. In the absence of such evidence with particular specialised knowledge, the inference sought to be drawn is not permissible (Strinic v Singh[18]).
[18] [2009] NSWCA 15.
The applicant submits that the reference by the first respondent to the entry in the records of Dr Kumar discussed by the first respondent supports the applicant’s claim that the renal condition was causally related to the applicant’s back injury because he could not imbibe pain killers because of the effect they had upon his kidneys. This link is made clear by the totality of the evidence that the Commission has been referred to by the applicant.
Applicant’s written submissions dated 12 July 2022 in reply to the written submissions of the second respondent dated 29 June 2022
The applicant submits that Member Sweeney’s findings in relation to the causal link between the back injuries and the disputed conditions have been set aside. Accordingly, no estoppel lies from the Member’s decision in that regard.
The applicant highlights that the second respondent, consistent with the manner in which the first respondent has run its case, has not attempted to refer to any actual evidence to suggest that the applicant’s submissions, which it has challenged, ought not be accepted.
FINDINGS AND REASONS
Hypertension
Member Sweeney made a finding at [76] of Hernandez 1 that the applicant’s hypertension dates from a period before his significant injury in 1987 and well before his first spinal surgery. At [77] the Member noted that finding undermines Dr Herman’s opinion as the causal nexus between the applicant’s injuries and the development of hypertension. Dr Herman’s opinion was posited on the assumption that the applicant developed the condition in the context of chronic pain, immobility, weight gain, and anxiety following his spinal fusion. On the history accepted by Member Sweeney the applicant experienced hypertension for several years prior to his original surgery. He said that the evidence did not establish that the factors relied on by Dr Herman existed at that time.
The applicant first underwent surgery in or about November 1992 at the hands of Drs Roarty and Bleasel, an L4/5 discectomy and fusion from that level to the sacrum.
At [80] Member Sweeney said:
“It is plausible that these factors caused the applicant’s hypertension to become labile in 2001 and 2005. However, their continuing effect upon the applicant’s hypertension is uncertain. It is unclear whether the applicant’s need for treatment for his hypertension results from the progression of the underlying condition or to that condition as aggravated by the back injury and its sequelae. It is evident that the applicant’s hypertension during the last decade or more has been well controlled by medication.”
The factors referred to by Member Sweeney were referred to in [79], namely, weight gain, depression and the ingestion of medication.
At [93] of Hernandez 1, Member Sweeney found:
“The primary difficulty confronting the applicant in respect of both conditions is that he experienced hypertension prior to his spinal surgery. In the absence of specific evidence addressing the issue it is impossible to determine whether the applicant’s renal and cardiac conditions have been caused by the underlying hypertension or the effects of the hypertension as aggravated by the applicant’s back injuries. In those circumstances, the Commission is unable to conclude that the applicant’s renal or cardiac conditions are consequential on his back injuries or that the need for medical treatment of these conditions result from the accepted back injuries.”
The separate issue of whether the applicant’s renal or cardiac conditions result from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992 (see [10] above), as opposed to his hypertension, will be considered hereunder. At [11] above the applicant’s submission in respect of hypertension is put as follows, with reference to the Transcript of 18 May 2022:
“Effectively this is the applicant’s case Member. The control or the poor control of the applicant’s hypertension by way of the medications that he’s been prescribed had a material contribution to the disputed conditions.”
The Certificate of Determination in Hernandez 1 is as follows:
“1. The applicant suffered injuries to his back arising out of and in the course of his employment with the first respondent on18 December 1973,16 August 1976 and 8 December 1987 in the employ of the first respondent and on 27 April 1992 in the employ of the second respondent.
2. As a result of these injuries the applicant aggravated a pre-existing condition of hypertension which became labile in 2001 and 2005.
3. The applicant has not established that he suffered a consequential medical condition of his shoulders or consequential cardiac or renal conditions as a result of the injuries in 1 above or that the need for treatment of these conditions resulted from these injuries.
4. Liberty to apply, if necessary, in respect of quantification of the applicant’s entitlement to compensation pursuant to section in accordance with order 2.”
Deputy President Wood in Hernandez 2 affirmed [1] and [2] of the Certificate of Determination in Hernandez 1, and revoked [3] and [4]. At [200(a)] she entered an award for the respondents in relation to the allegation that the applicant’s bilateral shoulder conditions resulted from the injury. That is not relevant to the current proceedings before me. At [200(b)] the Deputy President entered an award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension. At [200(c)] the Deputy President remitted the matter to another member for determination of whether the applicant’s:
(a) renal condition, and
(b) cardiac condition
resulted from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992.
Notwithstanding these orders the applicant nevertheless submits that medications that he’s been prescribed for hypertension had a material contribution to the disputed renal and cardiac conditions. The applicant relies on what the Deputy President says at [193] of Hernandez 2, and in particular the last sentence thereof, with emphasis on the concluding words “and/or hypertension.” The full text of [192] and [193] is as follows:
“192. It is apparent that, while the Member placed some focus on the appellant’s hypertension and gave cogent reasons for his conclusions in respect of that condition, he did not give full consideration to the case put to him by the appellant in respect of the cardiac and renal conditions. The Member appeared to accept that there can be a connection between hypertension and a renal condition but concluded that there was insufficient evidence to establish that, in this case, the aggravated hypertension materially contributed to the renal condition. That conclusion was open to him. However, he did not take into consideration the allegation that the medication prescribed to the appellant to treat the appellant’s back injuries materially contributed to the appellant’s renal condition. Nor did he give consideration to whether the medication prescribed to treat the back injuries materially contributed to the cardiac condition.
193. The appellant’s submission in this regard was clearly argued, was made on the basis of documentary evidence in the proceedings and was a significant part of the appellant’s case. A failure to deal with a significant submission in the appellant’s case constitutes an error of law and may constitute a denial of natural justice. It follows that the Member erred by failing to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension.”
The reference by the Deputy President to the apparent acceptance by Member Sweeney that there can be a connection between hypertension and a renal condition was to what she said in [181] and [182] of her judgement. She said in [182] that the appellant (the applicant) had not pointed to any evidence that displaces the reasoning of Member Sweeney. The applicant failed to adduce sufficient evidence to satisfy him of the case presented, which was in the context of the second ground of appeal in which the Member was said to have reversed the onus of proof, that the aggravated hypertension materially contributed to the renal and cardiac conditions. She said:
“In circumstances where the appellant failed to make out his prima facie case, which was a pre-requisite to the burden shifting to the respondent to disprove that case in the terms discussed in Watts and Purkess,the respondent was not required to adduce evidence that proved that there was no causal connection.”
In [192] Deputy President Wood held that was a conclusion of Member Sweeney in [182] that was open to him. The award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension logically follows from this finding.
In respect of the reliance by the applicant on the concluding words of [193], “and/or hypertension”, I accept the first respondent’s submission referred to in [47] above. The first respondent concedes that there may be an argument available to the applicant that there is a causal link between medication for the back injury on the one hand, and present treatment needs for his renal and cardiac conditions on the other. In rejecting the link through hypertension, Member Sweeney failed to give due consideration to another possible link, namely medication for the back condition making a direct contribution to either of the conditions. Hence the use by Deputy President Wood of the expression “and/or”.
I accept the submission of the first respondent, supported by the second respondent, that for the reasons discussed above, the applicant may not argue that medication for his hypertension had contributed to the renal and cardiac conditions. This matter has been dealt with by the Commission.
Did the renal and cardiac conditions result from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992?
Both the applicant and the first respondent have drawn attention to what Deputy President Roche said at [57] and [58] in Murphy as to the causation of a condition and the reasonable necessity for relevant treatment as a result of a workplace injury. The Deputy President noted that a condition can have multiple causes, and that the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. A worker only has to establish, applying the commonsense test of causation referred to in Kooragang v Bates, that the treatment is reasonably necessary as a result of the injury. That is, that the injury materially contributed to the need for the treatment.
The applicant relies on what Kirby P stated at 464A in Kooragang v Bates that:
“In each case, the question whether incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The applicant has pointed out that the evidence of an expert is not required and that the matter must be decided on the basis of the whole of the evidence and that an applicant is not required to have corroboration in order to succeed. Further, there has not been a submission from the respondents that the treating evidence as a whole or lay evidence relied upon to substantiate causation for the consequential conditions in this case ought not be accepted.
The matter which must now be determined, having regard to the finding in [93] above and what Deputy President Wood said in last two sentences of [192] and in [193] of Hernandez 2, is whether the ingestion of medication prescribed to the applicant to treat his back injuries materially contributed to the renal condition and cardiac condition from which he suffers.
The applicant sought to do this by a detailed consideration of the records of the doctors who have treated him since his injury, including the findings of a number of treating specialists, and also the opinion of Dr Herman who has provided a medico-legal report dated 3 August 2017 referred to at [38] above.
Before consideration of the detailed oral submissions made by the applicant at the hearing on 18 May 2022 with reference to the evidence before the Commission, and also with reference to the submissions made by the applicant to Member Sweeney and recorded in the transcript of 22 March 2021[19], a number of matters should be noted. These are:
(a) Member Sweeney found at [78] of Hernandez 1, accepting the evidence of Dr Winer in his report dated 21 October 1988[20], that the applicant’s hypertension dates from a period before the applicant’s significant injury in 1987 and well before his first spinal surgery;
(b) Member Sweeney’s determination that as a result of the applicant’s back injuries the applicant aggravated the pre-existing condition of hypertension in 2001 and 2005 was confirmed on appeal;
(c) as referred to above at [58]-[59], the second respondent submits that that there was no evidence that an aclasta infusion (for osteoporosis) or Reandron treatment (a testosterone replacement) resulted from his back injury. That is correct. Member Sweeney accepted that at [86] in Hernandez 1, and the applicant did not appeal from this aspect of the decision;
(d) it is the ingestion of medication prescribed to the applicant to treat his back injuries which must be considered to determine if this materially contributed to the renal condition and cardiac condition from which he suffers. In this regard, the inability to exercise as a possible material contribution to either the renal condition or the cardiac condition is not a factor to be considered, and
(e) the applicant’s counsel conceded with reference to the necessity to examine the treatment records and other relevant material that “…the nature of the applicant’s case is I do need to take [sic, you] to these records and there’s no singular smoking gun that I can refer you to, I just have to go to these records.”[21]
[19] T 21.03.21.
[20] AALD 14 January 2001.
[21] T p 56.10.
The records of the practitioners on whom the applicant relies, summarised in his submissions dated 21 April 2022, are as follows:
(a) DMC Medical Centre (principally Dr Linda Pope). The applicant refers to these records in submissions at T pp 33-40. The only relevant medication referred to by Dr Pope in her records is Vioxx, an anti-inflammatory, which was prescribed until 13 March 2002[22]. Dr Pope indicated that the applicant should cease taking Vioxx because it may be affecting his kidney (that is, his renal condition). The Adalat and Monopil medication were prescribed for blood pressure (that is, hypertension), the prescription for which was continued. Vioxx was re-prescribed by Dr Pope on 15 October 2002[23] and ceased again on 12 November 2002[24]. There is a further reference by Dr Pope to Reandron in her clinical note dated 17 November 2010[25];
(b) A/Prof Singh, senior staff specialist in aged care at Balmain Hospital, reports dated 6 February 2012 and 21 November 2013[26]. The references relied upon by the applicant in these reports are to “…hypertension since 1992 actually well controlled with drugs…”, and a bone density scan in 2009 demonstrating osteopenia, the treatment for which included the aclasta infusion (referred to in the records of the DMC Medical Centre)[27];
(c) A/Prof Gillin, who in his report dated 3 October 2016 refers to weight gain due to inability to exercise much and to risk of osteoporosis[28];
(d) reports of Dr Puranik, a cardiologist, dated from 25 May 2006 to 24 October 2016[29] in which there is discussion of the applicant’s cardiac condition and coronary heart disease, and limited exercise capacity;
(e) further reports from A/Prof Gillan covering the period from1 June 2006 to 3 October 2016[30] in which there is discussion about reduction in medication for hypertension and the renal function, and reference to inability to exercise because the back;
(f) a report of Dr Jens Kilian dated 7 July 2005[31] which discusses high risk factors for ischaemic heart disease including hypertension and hypocholesterolaemia, and
(g) reports of Dr Garrick, neurologist, from 13 January 2009 to 9 November 2010[32] which refer to a background of hypertension related renal impairment, osteoporosis and the cessation of the medication of Duloxetine for treatment of pain, which was ceased because of the affect that it had on the applicant’s blood pressure. Dr Garrick also raises concern that Reandron injections may be contributing to renal impairment, a matter in which there has been a finding that such injections were not related to the back injuries.
[22] ARD p 911.
[23] ARD pp 909-910.
[24] ARD p 908.
[25] ARD p 877.
[26] ARD pp 214 and 217.
[27] T p 40.15-T 40.30.
[28] ARD p 668.
[29] ARD pp 140-158.
[30] ARD pp 166-206.
[31] ARD p 136.
[32] ARD pp 1,501-1,535.
Member Sweeney commented at [68] of Hernandez 1 that
“One obvious difficulty confronting the Commission in determining whether hypertension, a cardiac condition, or a renal condition results from the accepted back injury is that the only positive, comprehensive medical opinion evidence addressing causal nexus is found in the report of Dr Herman, the cardiologist, obtained in 2017. For reasons that are unexplained, there is no medico-legal report from the applicant’s treating cardiologist, his treating renal surgeon, or any other of the many specialists who have treated the applicant over the last 25 years. Importantly, there is no report from the applicant’s general practitioner, although he appears to have been treated regularly for many years by Dr Linda Pope. Where the time and causes of the onset of hypertension are both contested, evidence as to the origins and course of that condition may have been invaluable.”
The same comments could be made in respect of the absence of reports from treating practitioners in respect of a possible link between the ingestion of medication for the applicant’s back injuries and the renal and cardiac conditions. My conclusion from examination of the medical evidence on which the applicant relies on this issue which I have summarised above is that there is a possible link between the ingestion of Vioxx and the renal condition raised by Dr Pope in her clinical notes, and that the applicant’s inability to exercise is a factor in his cardiac condition. I have been unable to locate any other evidence as to whether the ingestion of medication for the back injuries resulted in the renal and cardiac conditions.
I have held it is not open to the applicant to argue that medication for his hypertension had contributed to the renal and cardiac conditions.
The applicant relies on the opinion of Dr Herman in his report dated 3 August 2017. The applicant principally relies on that report to establish a link between hypertension and his cardiac condition. That link has been rejected by Wood DP. There is an award in favour of the respondents for the allegation that the applicant’s renal and cardiac conditions resulted from his hypertension.
When discussing hypertension, Dr Herman describes it as a multifactorial condition, the cause of which is not well understood but most likely the result of genetic as well as environmental factors with multiple compounding effects. He says:
“In Mr Hernandez's specific circumstance, the chronic pain following his spinal
injury in association with immobility, anti-inflammatory usage, weight gain and anxiety has provoked a probable predisposition to hypertension. His hypertension became unstable in 2005.”
When asked to describe the causes of the condition, Dr Herman says:
“The specific provokers (aggravating factors) are the chronic pain syndrome from his work related injury, weight gain, anti-inflammatory usage, immobility and anxiety secondary to his circumstance.”
Dr Herman includes anti-inflammatory usage, along with immobility and weight gain, as provoking a probable predisposition to hypertension, which he says became unstable in 2005. This is in contrast with what Dr Pope says about the ingestion of Vioxx, namely “…it may be affecting his kidney.”
The second respondent notes that Dr Herman is unclear as to what cardiac condition the applicant contends related from his back injuries, that is, is it aortic dilation and/or mitral valve regurgitation, or something else. The second respondent submits that there is no specific medical evidence to support either or both of these conditions having resulted from the applicant’s back injuries. Dr Herman says that aortic dilation has multiple causes but it is often secondary to chronic hypertension. He says that poorly controlled hypertension can certainly provoke further dilation, and that aortic dilation is a multifactorial disease and can occur secondary to weak connective tissue. Dr Herman does not provide an opinion that either aortic dilation or mitral valve regurgitation resulted from the applicant’s back injuries.
The second respondent submits that there is no evidence from any of the applicant’s treating specialists to support the applicant’s contention that his renal condition results from his back injuries. A/Prof Gillin, who saw the applicant on a regular basis at no time expressed an opinion regarding causation of the renal disease. The applicant had renal disease at the time that he first saw A/Prof Gillin, who helped him to maintain his kidney function without it getting worse. I accept this submission.
In my view the applicant has not produced evidence to demonstrate, on the balance of probabilities, that as a result of ingestion of medication for his undisputed back injuries, he suffered a renal condition or a cardiac condition consequent upon those back injuries.
Deputy President Wood confirmed the determination of Member Sweeney that as a result of injuries to the back arising out of and in the course of the applicant’s employment with the first respondent on18 December 1973,16 August 1976 and 8 December 1987 and on 27 April 1992 in the employ of the second respondent the applicant aggravated a pre-existing condition of hypertension which became labile in 2001 and 2005.
There is no evidence to which I have been directed to indicate what treatment, if any, that the applicant has undergone in respect of aggravation of the pre-existing condition of hypertension which became labile in 2001 and 2005. If there is any such treatment, the applicant will have liberty to apply to the Commission in the absence of agreement for the payment of the cost of such treatment pursuant to s 60 of the 1987 Act.
SUMMARY
The applicant has not established on the balance of probabilities that the renal condition and cardiac condition from which he suffers results from injuries to the back arising out of and in the course of the applicant’s employment with the first respondent on18 December 1973,16 August 1976 and 8 December 1987 and on 27 April 1992 in the employ of the second respondent.
Award for the respondents in respect of the applicant’s claim for expenses pursuant to s 60 of the 1987 Act for treatment of the applicant’s renal condition and cardiac condition.
Liberty to apply, if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to s 60 of the 1987 Act in respect of any claim that the applicant may have for expenses for treatment of aggravation of a pre-existing condition of hypertension which became labile in 2001 and 2005.
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