Hernandez v State Rail Authority of NSW
[2021] NSWPIC 159
•2 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hernandez v State Rail Authority of NSW [2021] NSWPIC 159 |
| APPLICANT: | Alberto Enrique Hernandez |
| RESPONDENT: | State Rail Authority of NSW |
| MEMBER: | Paul Sweeney |
| DATE OF DECISION: | 2 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker claimed the cost of shoulder surgery and treatment of hypertension, cardiac and renal conditions which he alleged resulted from accepted injuries to back between 1973 and 1992; where worker’s evidence in respect of onset of hypertension rejected in favour of a medical history recorded in report; where worker’s case on causal nexus between the need for treatment and the accepted injuries postulated on basis of the opinions of qualified specialists who assumed inaccurate histories; where absence of evidence on nexus from treating doctors; Paric v John Holland (Constructions) Pty Ltd and Ho v Powell considered; Held- finding that worker had not proven causal nexus between accepted injuries and need for treatment save for treatment of transient aggravations of hypertension. |
| DETERMINATIONS MADE: | 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. |
STATEMENT OF REASONS
INTRODUCTION
Alberto Enrique Hernandez (the applicant) suffered serious injury to his low back in the employ of the State Rail Authority of NSW (the first respondent) and Adstock Pty Ltd (the second respondent). The applicant has been in receipt of an award of weekly compensation made by the former Compensation Court of NSW from 10 May 1994. The background to the award of Judge Geraghty is related in the reasons of 28 October 2015 of Senior Arbitrator McDonald in matter number 4217/15 between the same parties.
By reason of his back injury and consequential medical conditions, it has been determined that the applicant is a seriously injured worker for the purposes of s 32A of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
By these proceedings, the applicant claims reimbursement of medical and hospital expenses which total $63,360.70. It is alleged that the need for treatment is reasonably necessary as a result of several consequential medical conditions. In the Application to Resolve a Dispute (the Application) the following injuries are described:
“Back and consequential conditions affecting neck, right and left legs, right and left arms, sexual organs, nervous system, upper and lower gastrointestinal system, right and left shoulders, heart, hypertension, renal, scarring (back, right and left shoulders).”
When the matter came on for a conciliation and arbitration on 21 January 2021, Mr Adhikary of counsel represented the applicant, Mr Perry of counsel represented the first respondent, and Mr Baker of counsel represented the second respondent. Although offers were exchanged by the parties, I was eventually informed that they were unable to reach any mutually satisfactory settlement of the threshold issues in the case. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to resolve their dispute.
During the conciliation, it was confirmed that the issues for determination by the Commission were whether the applicant suffered consequential medical conditions of both shoulders and consequential hypertension, renal and cardiac conditions which resulted from accepted back injuries in the course of his employment. While the applicant suffered injuries to his back in the employ of the first respondent on 18 December 1973 and 16 August 1976, he performed his normal duties until injuries on 8 December 1987 in the employ of the first respondent and 27 April 1992 in the employ of the second respondent. A review of the medical record suggests that it is those injuries which are primarily responsible for his incapacity and need for treatment.
While the parties adopted the language of consequential medical conditions the more appropriate formulation of the issues in dispute is whether the need for treatment of these conditions result from the accepted injuries. Nonetheless, in view of the restraints of the time, I ruled that in these proceedings the Commission would determine whether the alleged consequential medical conditions resulted from the back injuries suffered by the applicant in the course of his employment with the respondents. It is simply not feasible to specifically address each of the manifold items of treatment claimed by the applicant and determine whether they were reasonably necessary as a result of injury in the time allocated to these proceedings. I was hopeful that if the threshold issues of causal nexus could be determined, the parties may agree on which individual items of treatment were compensable.
As it transpired, Mr Adhikary’s submissions took up the remaining time allocated to the matter on 21 January 2021 and a good deal of a further arbitration hearing on 22 March 2021. At the conclusion of Mr Adhikary’s submissions on 22 March 2021, I ordered that the respondents lodge and serve written submissions and that the applicant lodge and serve written submissions in reply. Those submissions were not lodged in accordance with the timetable contained in my order, however, they have now been received by the Commission.
On 22 March 2021, the appearances were as before save for the second respondent. Ms Goodman of counsel appeared for the second respondent in lieu of Mr Baker.
EVIDENCE
The documents before the Commission are as follows:
(a)Application and the documents attached;
(b)Reply lodged by each respondent and the documents attached
;and(c)Applications to Admit Late Documents dated 12 November 2020, 14 January 2021, 18 January 2021, 28 January 2021 and 15 March 2021.
The only documents objected to by either party at the initial arbitration were a report of Dr Conrad Winer dated 21 October 1998, which had been lodged by the first respondent under cover of an Application to Admit Late Documents dated 14 January 2021, and a supplementary statement of the applicant addressing that report. As the report of Dr Winer had been relied upon by the applicant in previous proceedings, I ruled that it was admissible. At all material times it had been in the possession or notional possession of the applicant and, in those circumstances, it was not open to him to argue ambush. As a corollary to the admission of the report, I ruled that the applicant’s supplementary statement addressing the chronology of his hypertension raised by the report was also admissible.
The parties approached the matter by dealing first with the condition of the applicant’s shoulders and separately with the conditions of hypertension, a cardiac condition and a renal condition. I propose to adopt that approach in attempting to resolve the issues in dispute.
BILATERAL SHOULDERS
The only qualified medical practitioner who addresses the condition of the applicant’s shoulders is Dr Y Kai Lee, an orthopaedic surgeon, who provided a report to the applicant’s solicitors dated 5 April 2017. He records a succinct history of injury to the shoulders. He records that the applicant commenced a rehabilitation program recommended and “approved by insurance”. He continues:
“They recommended rehab at home under supervision. He was asked to lift up to 14kg to above shoulder level despite him complaining he could not do it. By September 2012, he developed a hernia. In 2013, he could not walk and was noted to have fracture of the spine. By then, he had pain in both shoulders. He could not lift even 3kg. His doctor referred him to Dr Petchell who operated on both his shoulders. The right side was operated on April 2015 and the left 9/02/2017. He paid for the operation himself. The right shoulder improved but in November 2015, the leg gave way and he fell injuring the right shoulder again. Fortunately, it improved subsequently.”
In the context of the above history the doctor expressed the opinion that the applicant’s rehabilitation caused or aggravated his shoulder condition. He states:
“He was asked to lift more than 14kg to above shoulder level and this can certainly cause further shoulder injury.”
Dr Lee accepted that the applicant had some asymptomatic “underlying impingement” in both shoulders, but the exercise program provided by the “Centre for Strong Medicine” contributed to the need for bilateral shoulder surgery. He stated that the ultrasound studies of his right shoulder on 30 October 2013 and later on 19 November 2015 showed substantial deterioration which implicated the physical activities he undertook in rehabilitation as a cause of the deterioration.
Applicant’s evidence in respect of his shoulders
The applicant’s evidence in respect of his shoulders is primarily contained in his statement of 10 August 2018. Aspects of that statement reiterate his evidence in earlier statements. The applicant says that he experienced ongoing and persistent pain in his right shoulder which necessitated him undergoing an ultrasound and x-ray on 18 December 2003. It is not entirely clear whether the applicant’s right shoulder pain continued after that time. He refers to a further operation on his low back on 2 August 2007 and states:
“From this time I used my right arm on a regular basis to assist me to stand up from low or seated positions. In about 2008 I started to feel pain in my right shoulder and was referred to consult with Dr Terry Kwong who then referred me to have an MRI to my right shoulder.”
After reviewing the MRI dated 30 September 2008, Dr Kwong advised the applicant to have right shoulder surgery. The applicant says that the pain at that time was “not significant enough to justify surgery”. Dr Kwong “asked me to consult with him at such stage when the pain is no longer bearable”.
The applicant then records that he was required “to undergo home-based rehabilitation as organised through the Centre for Strong Medicine” at Balmain Hospital. He was supervised by an exercise physiologist, Nathan Devos who “pushed me to lift dumbbell weights of 9 to 10 kilograms”. The applicant says, however that he could only manage 7 kg with each arm before feeling extreme pain in his shoulders.
The applicant states that in October 2013, he began to experience extreme pain in both his shoulders. He reported the symptoms to his general practitioner, Linda Pope who referred him for ultrasounds of his shoulders.
After a series of ultrasounds of both shoulders, the applicant was referred to Dr Geoffrey Petchell who operated on his right shoulder on 16 April 2015. On 9 February 2017, Dr Petchell performed surgery on the applicant’s left shoulder.
Submissions of the respondents
By its submissions in respect of the shoulders, Ms Goodman drew attention to the presence of right shoulder pain and established pathology in the right shoulder many years before the applicant attended at the Strong Medicine Clinic. Dr Lee had no history of a symptomatic right shoulder prior to the applicant’s commencement of treatment at the Strong Medicine Clinic. Similarly, his history in relation to the weights lifted by the applicant was inconsistent with both the applicant’s written evidence and the contemporaneous record of the treatment, which demonstrated that the applicant never lifted over 6-8 kg. In those circumstances, Dr Lee’s opinion was based upon flawed assumptions and could not be accepted.
Ms Goodman submitted that none of the applicant’s treating doctors expressed an opinion that there was a relationship between the applicant’s attendance at the Strong Medicine Clinic and his bilateral shoulder problems. There was a lack of contemporaneous complaint of shoulder problems to the applicant’s treating doctors or specialists who the applicant saw for the purposes of his case until 2015. In the circumstances, the applicant had failed to prove a relationship between the Strong Medicine Clinic exercise regime and the need for bilateral shoulder surgery.
In his short supplementary submission on behalf of the first respondent Mr Perry also relied upon the absence of any opinion evidence from Dr Pope or Dr Petchell to suggest a causal connection between work injury and the condition of either of the applicant’s shoulders.
Contrary to Ms Goodman’s submissions, Mr Adhikary referred to the applicant’s complaint of bilateral shoulder pain to Dr Puranik on 27 October 2014, which the applicant clearly associated with his rehabilitation at the Strong Medicine Clinic. Subsequently, on 19 March 2014 Professor Gillin noted that the applicant had stopped rehabilitation due to worsening pain in his arms, leg and symptomatic bilateral shoulder problems.
Mr Adhikary submitted that while he complained of right shoulder pain to Dr Kwong in 2008, the applicant had a full range of movement in both shoulders at the time. That position is to be contrasted with the restriction of movement in both shoulders subsequently found by medical practitioners.
Mr Adhikary submitted that after the applicant attended Dr Kwong on 3 November 2008, the clinical record revealed no complaint in respect of the applicant’s right shoulder until “the applicant complains of his issues referable to the Strong rehab program”. Specifically, there was no record of the applicant complaining of right arm symptoms between 24 November 2008 and 23 September 2013. At that time, the applicant was referred for a further ultrasound and for right and left bursal steroid injections.
Further, the respondent’s attack on causal relationship between treatment at the Strong Medicine Clinic and the applicant’s shoulders based upon pre-existing complaint must be limited to the applicant’s right shoulder as there is no reference to the applicant’s left shoulder before the commencement of his treatment at the Strong Clinic .
Mr Adhikary submitted that a note of Dr Pope of 3 September 2014 also records the applicant’s assertion that his shoulder problems developed with rehabilitation treatment at the Strong Clinic . That he developed shoulder pain during the program was also consistent with a note of the exercise physiologist, Nathan Devos, in August 2014 that the applicant did not feel he could continue with the program by reason of his shoulder and back pain.
Mr Adhikary then referred to the evidence of Dr Petchell, the applicant’s orthopaedic surgeon, who obtained a history of shoulder pain for 2 years at the time he first saw the applicant in 2015. He also recorded that the applicant had made a good recovery from a fall subsequent to his right shoulder surgery in which he had fractured his right humerus. Thus, the evidence from the applicant’s treating doctor suggested the onset of shoulder complaints which were chronologically consistent with what the applicant had said in his statement.
Mr Adhikary submitted that there was no reason to disbelieve the applicant’s evidence. Other than the theory advanced by Dr Lee, there was no competing hypotheses as to the need for shoulder surgery. Mr Adhikary relied upon Mahony v J Kruschich (Demolition) Pty Ltd (1985) 156 CLR 522 for the proposition that the evidence did not establish a novus actus interveniens between injury and the need for shoulder surgery. He also submitted that it was “a trite proposition that incapacity or impairment can have more than one cause”. The Commission only had to be satisfied that the exercise program at the Strong Clinic was the cause of the need for surgery.
Finally, Mr Adhikary referred to the histories obtained by the Approved Medical Specialists, Dr Berry and Dr Crane, to the effect that the applicant did not have problems with his shoulders until 2012 when he attended the Strong Clinic to help with mobility of his back and neck.
By his submissions in reply, Mr Adhikary argued that the histories in the medical record “should not detract from the applicant’s evidence simply because their records do not explicitly indicate how the applicant came to injure his shoulders”. He referred to the remarks of Basten JA in Mason v Demassi [2009] NSWCA 227 at [2].
DISCUSSION
It is evident that Dr Neil McGill, a rheumatologist, suspected that the applicant’s right arm symptoms in December 2003 were attributable to rotator cuff disease in his right shoulder. He made that provisional diagnosis solely on the basis of his clinical examination. He noted that while the applicant had a full range of movement of the right shoulder, his initial pain response was “very suggestive of impingement”. Equally, abduction of the right shoulder was “weak in association with pain”.
An x-ray and ultrasound of the applicant’s right shoulder, however, did not demonstrate shoulder pathology except for “a little anterior bursal thickening” which the radiologist felt was asymptomatic at the time of the study. Dr McGill thought there was no role for surgery or other invasive therapy at that time. Plainly, he doubted that the applicant’s right arm pain was emanating from his cervical spine.
When the applicant saw Dr Kwong on 22 September 2008, he complained of pain in “both shoulders especially in the right”. He specifically stated that the left shoulder pain started “about 5 weeks ago”. The doctor recorded that the applicant has “severe pain in his shoulder and right upper arm and has sleep disturbance.”
Dr Kwong thought that the underlying cause of the applicant’s right shoulder and upper arm pain was not clear, although he observed that an MRI scan did not demonstrate any nerve root compression of the cervical spine. He referred him for an MRI of his right shoulder.
On 13 October 2008, Dr Kwong reported that the applicant complained of persistent pain in both shoulders, especially the right and also in his upper arms. He recorded that the MRI of the right shoulder demonstrated:
“A large full thickness tear of the supraspinatus tendon anteriorly and there was also moderate tendinosis of the posterior fibres of the supraspinatus and infraspinatus. There was subacromial bursitis. There was also subscapularis partial tear and a SLAP tear between 11 and 1 o’clock.”
Dr Kwong states that he discussed with the applicant the “MRI findings of significant rotator cuff tear and subacromial bursitis”. He prescribed a steroid injection for both diagnostic and therapeutic purposes.
On 3 November 2008, Dr Kwong reported that the applicant did not have any response to right subacromial bursa injection. He had also developed “muscular pain” in both shoulders. He reported that the applicant was not keen to see a shoulder surgeon as he felt the large full thickness tear of the supraspinatus tendon was longstanding. Dr Kwong expressed the opinion that the therapeutic options were limited.
It is true that there is no further record of shoulder pain in the evidence for several years, although I note that on 6 February 2012, Associate Professor Singh, a specialist in aged care at the Strong Clinic , noted that the applicant presented with a:
“a long history of back pain, shoulder pain, left leg numbness, right leg weakness that leads to multiple falls, 3 since Christmas.” (My italics)
On examination of the upper limbs, Dr Singh found triceps weakness and globally reduced power, although the significance of these findings is unclear.
Curiously, although Dr Lee was briefed with the reports of Dr Kwong dated 22 September 2008, 13 October 2008, and 3 November 2008, he records no explicit history of the applicant experiencing symptoms in his shoulders until he commenced treatment at the Strong Clinic . His opinion as to aggravation is based on the hypothesis that the applicant had degenerative changes in his shoulders which were asymptomatic before he performed the exercises prescribed by the Strong Clinic. There are other aspects of the doctor’s history which are unsatisfactory.
First, while he records medical investigations in respect of the applicant’s shoulders between 30 October 2013 and 27 September 2016, Dr Lee makes no reference at all to the MRI performed at the request of Dr Kwong which is summarised in his report. Clearly, that report demonstrates significant right shoulder pathology. After explaining the MRI findings to the applicant, Dr Kwong raised with him the possibility of referral to a shoulder surgeon for a consideration of a surgical solution to his right shoulder pain. A comparison of the pathology demonstrated in that MRI scan with the pathology demonstrated on the pre-surgical MRI scan of the right shoulder on 24 February 2013 may have been of more assistance in determining causation than the comparison of ultrasounds in 2013 and 2015. It is common for ultrasounds and MRI scans to demonstrate quite different outcomes.
When Dr Petchell saw the applicant on 3 March 2015, he reported that the recent MRI scan confirmed the presence of a full thickness tear of the supraspinatus and a tear of the upper subscapularis. These lesions were also evident on the earlier MRI scan reported by Dr Kwong which I have set out in [35] above. Whether or not there had been deterioration in the pathology is, of course, a matter for medical evidence. However, both the rotator cuff tears which Dr Petchell sought to repair surgically were present in 2008.
There is one other aspect of Dr Lee’s history that is inconsistent with other evidence. Dr Lee records a history of the applicant lifting weights of up to 14 kg. That is almost twice the weight that the applicant states that he lifted in his written evidence. As Ms Goodman points out Dr Lee’s assumption is also inconsistent with the clinical record of the Strong clinic, although I appreciate that the clinical record may not be completely reliable.
In the circumstances of this case, where the applicant had pre-existing pain in both shoulders and significant rotator cuff pathology in his right shoulder, an accurate account of the weight which he was required to lift during his treatment at the Strong Clinic is important. Did the lifting of weights simply bring the applicant’s attention to the pre-existing pathology in his shoulders or did it permanently exacerbate his symptoms? To pose the traditional question did the exercise program prescribed at the Strong Clinic merely reveal the pre-existing shoulder condition or was it “genesis”, in the sense that it caused an aggravation, exacerbation or deterioration of the condition.
The distinction between revelation and genesis originates from the judgment of Windeyer J in the High Court of Australia in Darling Island Stevedoring & Lighterage Co. Ltd v Hussey (1959) 102 CLR 482. Relevantly, his Honour said this at [520]:
“Furthermore an existing infirmity, or an increase in its incapacitating effect, may become apparent if upon exertion the limit of bodily tolerance is reached sooner than theretofore. This is the consequence of an existing condition, not the onset of a new malady. It is manifestation not causation, revelation not genesis. Some relationship between the occurrence of death and whatever effort or activity, great or small, immediately preceded it may nearly always be postulated when a man succumbs because some organ has from infirmity due to advancing disease or decay proved at last unequal to the task of further sustaining bodily effort; and it may in one sense be proper to speak of a causal relationship. But it is not I think in this sense that exertion can properly be spoken of as accelerating death or as a contributing factor. It may often be true that if a man doomed or dying had not done this or that, he might not have died exactly when he did; he might have lived a little longer, perhaps some hours, perhaps minutes, perhaps seconds longer. But the Act is not concerned with the abbreviation of life by seconds, minutes or even hours. It is concerned with death or incapacity whereby a worker or his dependents suffer because he cannot continue at work. To say that a man died from exertion simply because he might not have died had he remained at rest doing nothing at all is only to say that he was already incapable of the exertion of work.”
In my opinion, in the absence of medical opinion expressed on the basis of an accurate history of the symptoms in the applicant’s shoulders prior to his attendance at the Strong Clinic and a consideration of the pathology in the applicant’s right shoulder in 2008 as demonstrated by the 2008 MRI, the applicant has failed to discharge the onus of proving that his back injuries materially contributed to the need for shoulder surgery. Dr Lee’s history is plainly inaccurate. He assumes that the applicant was asymptomatic prior to his referral to the Strong clinic . This is patently false. He has an inaccurate history as to the weights which the applicant was required to lift. He does not record or consider the pathology demonstrated by the 2008 MRI scan, which reported rotator cuff pathology in almost identical terms to the subsequent scan in 2015. The assumptions underlying Dr Lee’s opinion are, therefore, significantly different to the facts proven in case: see Paric v John Holland (Constructions) PtyLtd 62 ALR 85.
It was also submitted that there was no evidence on the point from the applicant’s treating doctors. I suppose it is true that the respondents could have sought an opinion from Dr Petchell or from Dr Pope, the applicant’s general practitioner on the issue of causation. On the other hand, the applicant has the onus of proof in the matter and must adduce sufficient evidence to persuade the Commission on the balance of probabilities: see the discussion by Hodgson JA in Ho v Powell [2001] NSWCA 168 (13 June 2001) at [13] to [21] and the subsequent discussion of these reasons by the High Court in Australian Securities and Investments Commission v Hellicar and others [2012] HCA 17 (3 May 2012).
If Dr Lee had an accurate history, the absence of an opinion from the treating doctors would be of no significance as the respondents have not adduced specialist opinion evidence on this issue. However, as Dr Lee’s report is flawed the absence of a positive opinion on causal nexus from the applicant’s treating doctors is fatal to his case.
HYPERTENSION
The applicant’s case in respect of hypertension (and renal and cardiac conditions) is posited on a report of Dr Mark Herman, a cardiologist dated 3 August 2017. Dr Herman examined the applicant on 31 July 2017 and recorded that he suffered spinal injuries at work in 1987 and 1992 which required surgery in the form of discectomy and fusion and resulted in significant post-operative pain and weakness. The doctor continued:
“Following the spinal surgery, he has chronic lower back pain, gained weight, required anti-inflammatory drugs and has developed anxiety relating to the above.
His hypertension was first diagnosed in 1993 and occurs in the absence of a family history of hypertension, prior kidney, bladder or endocrine problems and without symptoms suspicious of pheochromocytoma or obstructive sleep apnoea. His blood pressure became erratic despite anti-hypertensive therapy (I note a level of 156/110 documented by his general practitioner on 23rd March 2006) requiring formal cardiological evaluation.”Dr Herman also noted that on 7 July 2005 the applicant had an echocardiogram, which revealed a mildly dilated ascending aorta at 39mm (a finding often secondary to hypertension). By 2006, he was documented as having mild mitral valve regurgitation, mild aortic root dilation and was advised to undergo a regular surveillance of these conditions.
On examination in 2017, the applicant weighed 92 kg and had a height of 173 cm. His blood pressure was 175/106 settling to 172/83 after five minutes. His heart sounds were dual with a mitral regurgitant murmur. His ECG showed sinus rhythm with normal morphology. Against that background Dr Herman expressed the opinion that:
“Hypertension is a multi-factorial 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.
In Mr Hernandez’s specific circumstances, 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.
In my opinion, the workplace incident is a substantial contributing factor towards his hypertension.”Dr Herman also stated that aortic dilation has multiple causes but was “often secondary to chronic hypertension”. While poorly controlled hypertension could provoke further dilation, it was a multi-factorial disease and can occur secondary to weak connected tissue. He added that in the context of increasing hypertension the risk of a cardiovascular event, heart failure and worsening renal function is significant.
Dr Richard Haber, a consultant physician, reviewed the documentation forwarded to him by the first respondent’s solicitors and prepared a report of 15 January 2021. It is evident that Dr Haber had access to the material contained in the Application and the report of Dr Conrad Winer dated 21 October 1988. After considering these documents, he expressed the following opinion in respect of diagnosis:
“Hypertension, occasionally raised, but mostly within normal range, on treatment with Adalat Oros and Avapro.”
In respect of the connection between the applicant’s orthopaedic injuries and the condition of hypertension and of his cardiac system, he offered the following opinion:
“Most of the time his blood pressure is well controlled on his treatment.
A tendency for hypertension in his case is due to a number of factors, which include obesity and his age as well as chronic renal impairment, these factors are not related to his injury.
He is not on regular treatment with anti-inflammatory drugs and is not on treatment for stress and lately his weight has been reasonably steady.
Chronic pain can aggravate a tendency to develop hypertension.In my opinion therefore his hypertension is only related to his injury to a minor degree.”
In respect of the treatment for hypertension, Dr Haber noted that the applicant had been prescribed medication to control hypertension but this was “only necessary to a minor degree in relation to his injury”.
The applicant’s evidence in respect of hypertension
The applicant’s evidence in respect of his hypertension (and cardiac and renal conditions) is largely contained in his statement dated 10 August 2018. By that statement, he says that he was diagnosed with hypertension following surgery in 1992 “it has worsened over the years”. He states that he first consulted a cardiologist Dr Kilian on 7 July 2005. From 29 September 2005 he has seen Dr Puranik for ongoing cardiac review.
The applicant states:
“As a result of my workplace injury, I had three spinal surgeries. This required me to be on anti-inflammatory drugs and pain relief. My hypertension worsened after surgery and over the years, as by 2006 I had a leaking mitral valve.”
The applicant says that he has been seeing Dr Adrian Gillin, a renal specialist since 31 May 2006. He believes that the doctor’s record that he had taken Monopril and Adalat since 1997 is correct. The balance of his statement is essentially a reiteration of the findings and opinion of Dr Herman.
By a supplementary statement bearing date 16 January 2021, the applicant takes issue with the history contained in the report of Dr Conrad Winer dated 21 October 1998. Dr Winer had recorded that the applicant “avoided all alcohol for the past 6 months (because of hypertension)”. He says that he has never been a habitual drinker and “was not diagnosed with hypertension at the time”. The applicant continues:
“Further, at the top of page 2 he says that I have had hypertension for 4 years. This is blatantly false as I was not diagnosed with hypertension and by the time, he wrote this report I was no longer seeing him, as will be explained below.”
The applicant says that on his commencement of employment with the first respondent in 1971, he was required to undergo a blood pressure test which was normal. At the end of 1972, he was also required to undergo a medical examination to transition to full-time employment. Once again, the blood pressure test was normal. Following his injury in 1973, he was examined by a medical board and, at that time, his blood pressure was also normal. There was a repeat examination before the medical board in mid-1988 and, once again, his blood pressure was normal.
The applicant says that he does not know where Dr Winer obtained the history that he had hypertension for four years prior to seeing him “as this is simply untrue”. He says that he had numerous physical examinations by Dr Winer following this date and was not advised that he had high blood pressure. The applicant says that he was not commenced “on permanent hypertension medication” until late 1993 or early 1994 when Dr Pope diagnosed him with hypertension.
The respondent’s submissions
The second respondent submitted that the opinion of Dr Herman could not be accepted as his history that the applicant was first diagnosed with hypertension in 1993 was incorrect. It was more probable than not that the history taken by Dr Winer in early 1988 was accurate at the time. That history should be preferred to the evidence of the applicant in his statement of 16 January 2021.
Ms Goodman submitted that Dr Herman assumed that the applicant’s hypertension commenced “in the context of the applicant’s back pain”. She asserts however, that this is not correct. Further, there was no evidence as to why the applicant’s blood pressure became labile in 2005. She argues:
“There is no explanation from Dr Herman as to why this occurred and whether this in fact had anything to do with the condition of the applicant’s back.”
The applicant’s submission
After analysing Dr Herman’s report in some detail, Mr Adhikary submitted that he had provided “a cogent and reasoned opinion to indicate why the applicant’s hypertension condition arose as a result of the accepted injury”. Dr Herman’s opinion also addressed the applicant’s cardiac condition in that he was of the opinion that the cardiac condition was materially contributed to by hypertension.
Mr Adhikary submitted that this opinion was “consistent with the treating evidence and all of the evidence”. He submitted that the notes of Dr Pope in 2002 strongly indicated that the applicant suffered “renal dysfunction secondary to Vioxx and Monopril” on 24 December 2002. Dr Pope had recorded that the applicant had “stopped painkillers because of kidney”. Subsequently on 10 February 2010, Dr Pope noted that the applicant had had kidney deterioration with an Aclasta effusion, which he submitted was related to the applicant’s injuries. Similarly, Reandron treatment which the applicant ceased in 2010 because of possible deleterious effect on the applicant’s renal function was also related to his injuries. Finally, on 31 August 2016, a Dr Masterton in Dr Pope’s practice had recorded that the applicant had chronic kidney disease which was “blood pressure and NSAID-related”.
Mr Adhikary also took me to a number of aspects of the evidence of the treating specialists which supported a connection between the applicant’s treatment for back pain and his hypertension and his hypertension and renal condition. The evidence of Dr Gillin also noted on a number of occasions that the applicant could not exercise because of a “bad back”. The records recorded weight gain by the applicant in the early years of this century. By June 2006 he was 95 kg.
Mr Adhikary submitted that Dr Winer’s history was of “no moment in this case”. That was because the respondent’s qualified position Dr Haber accepted a causal connection between the applicant’s back injury and its sequelae and the development of hypertension. The Commission should accept the applicant’s evidence that it was not until after the surgery in 1992 that the applicant’s hypertension “was treated on a permanent basis”.
Discussion
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.
I have already commented on the effect of the absence of medical evidence from treating doctors in considering causation of the applicant’s bilateral shoulder condition. I reiterate, however, that when the evidence is equally balanced, the absence of evidence from a treating doctor may lead to the finding that there is insufficient proof for the applicant to succeed on the issue.
The other obvious background issue is that the applicant is a man of 75 years of age. I doubt whether it infringes the principle in Strinic v Singh [2009] NSWCA (19 February 2009) to state that hypertension is an extremely prevalent condition in elderly men. I presume that this is one of the factors that both Dr Herman and Dr Haber elude to when they describe the cause of hypertension as multifactorial.
Thirdly, it is quite evident that the aetiology of the applicant’s hypertension is of critical significance to the determination of the remaining issues in the case. In my opinion there is reasonably cogent evidence that hypertension can cause or materially contribute to a renal condition and some aspects of his cardiac condition. I will address both the causation of both these conditions briefly below.
By his statement dated 10 August 2018, the applicant says that he was “diagnosed with hypertension following surgery in 1992” which has “worsened over the years”. The first clinical record of hypertension is contained in a clinical note of Dr Pope dated 20 August 2001. She recorded that the applicant had stopped taking Lipobay in June as his blood pressure was 135/88. Dr Pope diagnosed osteoarthritis and hypertension. She prescribed Monopril and Vioxx and Adalat Oros. There is no indication in the note as to when the hypertension commenced. It is evident, however, from a note of Dr Pope of 3 September 2001 that the applicant was experiencing painful back pain at that time and was suffering depression.
In resolving the conflicting evidence as to the time of onset of hypertension, it must be borne in mind that the applicant is attempting to recollect events which occurred 30 years ago. While the applicant may genuinely believe that his hypertension commenced in 1992 following his back surgery, it is extremely difficult to prefer his recollection on this point to the written evidence of Dr Winer. Dr Winer saw the applicant at the request of his general practitioner, Dr Mor-Yosef initially on 25 January 1988. The doctor recorded a history that the applicant had avoided all alcohol for the past 6 months (because of hypertension). In the medical history section of his report, he noted a tonsillectomy, fractures of the left arm when aged 6 and13, hepatitis at aged 18 and “hypertension 4 years”. The doctor also noted that by 26 April 1988, the applicant was able to resume work on selected duties and after a further two weeks he was able to upgrade to all duties. Unfortunately, following his resumption of full duties the applicant’s back and leg pain worsened which was evident from his limited movement on clinical examination.
In cases involving events which occurred many years before the litigation, a tribunal usually prefers to rely on contemporaneous or near contemporaneous documents, which will often provide a more accurate account than attempts by a witness to recollect (or reconstruct) events which occurred many years previously. See, for example, the reasoning of Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) Federal Court of Australia 29 June 1995, unreported, but subsequently approved by the High Court of Australia in Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR at [15]. The High Court judgment recites this passage. Following the lapse of time:
“Between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on.”
It will be evident from the above quotation that Lake Cumbeline was a commercial case. Nonetheless, the reasoning is equally applicable to personal injury litigation. It is but one of many examples of cases where courts have addressed the fallibility of memory and the preference for documentary evidence in cases where the pivotal events occurred many years ago.
The criticisms which the applicant makes of Dr Winer’s report, including his suggestion that Dr Winer has not been truthful, are of little weight. There is no tenable argument that Dr Winer was partisan or that the other aspects of his recording of the applicant’s history are inaccurate. While the applicant states that he had normal blood pressure on earlier and later examinations that is also dependent on his recollection rather than documentary evidence. I prefer the evidence that the applicant’s hypertension dates from a period before his significant injury in 1987 and well before his first spinal surgery.
That finding, of course, undermines Dr Herman’s opinion as to the causal nexus between the applicant’s injuries and the development of hypertension. Dr Herman’s opinion is 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 that I accept, the applicant experienced hypertension for several years prior to his initial surgery . The evidence does not establish that the factors relied on by Dr Herman existed at that time.
As Mr Adikhary argues Dr Haber also provides support for a causal connection between the applicant’s back injuries and hypertension on the basis of a history which is more consistent with the facts that I have found. Dr Haber expressed the opinion that the applicant’s hypertension has been aggravated by chronic pain. I accept this opinion. Dr Haber specifically discounts weight gain and depression as causal factors in this case.
There is, however, ample evidence that the applicant experienced weight gain and suffered depression almost certainly as a result of his back condition in the period after 2001 when there is a good clinical record of the applicant’s treatment. The applicant also states he was prescribed NSAIDS in the years following the surgery although in the absence medical record the dosage and type of drug cannot be established. Certainly, the applicant was prescribed Vioxx for a brief period in the early part of this century. It is, therefore, probable that the effect of the back injuries on the applicant’s hypertension is greater than “the minor degree” opined by Dr Haber.
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.
Mr Adikhary also referred to several aspects of the applicant’s treatment that may have contributed to the development of hypertension. I have discussed Vioxx which the applicant was prescribed in the early part of the century above. Dr Gillin noted that Duloxetine, a medication used to treat depression, caused the applicant’s blood pressure to rise in 2009. Again, it remains unclear as to whether the use of this and other drugs had a lasting impact on the applicant’s underlying hypertension and, if so, the extent of the impact.
CARDIAC CONDITION
Submissions in respect of cardiac condition
The respondent submitted that it was not clear what cardiac condition the applicant was claiming. It notes that Dr Herman expresses the opinion that there is a causative link between hypertension and aortic dilation. It submits, however, that as Dr Herman’s history in respect of the time of onset of hypertension is inaccurate, his opinion on this issue is also flawed. Assuming that the alleged consequential cardiac condition is mitral regurgitation, Dr Herman did not provide an opinion that that condition resulted from the applicant’s back injury. The respondent also observed that “even Dr Herman has opined hypertension is multifactorial”.
In response to these submissions Mr Adhikary took the Commission to aspects of serial reports of the applicant’s treating specialists which supported a connection between the applicant’s back injury and its sequelae, including the treatment regime for the injury, and the development of both the cardiac condition and a renal condition. He referred to the opinion of Professor Gillin that the applicant’s renal function had previously deteriorated with the use of ACE inhibitors. The doctor also noted that Duloxetine, a medication used to treat depression, caused the applicant’s blood pressure to rise in 2009. Professor Gillin also recorded a steady rise in the applicant’s weight due to his physical restrictions. He also referred to the opinions of Dr Garrick, a neurologist who treated the applicant in 2009.
Mr Adhikary also submitted that Dr Haber’s opinion that mitral valve regurgitation was not related to the applicant’s injuries was a bear ipse dixit and should not be given any weight. Contrary to Dr Haber’s view that that depression and chronic renal treatment were not related to the injury and its sequelae, the evidence of the applicant’s treating specialists established a clear causal connection. It was also clear from the medical record that the applicant had taken anti-inflammatory drugs (NSAIDS) in the past.
Hypercholesteremia and renal
While the respondent addressed on this issue there is little evidence that the applicant’s elevated cholesterol results from the employment injury or its sequelae. It might be assumed I suppose that it is related to the applicant’s hypertension. The respondent’s submission under this heading also deals with the alleged consequential renal condition. Ms Goodman submitted:
“There is no evidence from a specialist nephrologist before the Commission and although the Applicant has been seen on many occasions by clinical A/Prof Adrian Gillin, renal physician there is no opinion from Prof Gillin regarding causation of any condition the applicant suffers from. While Dr Herman had expressed the opinion that the applicant’s kidney disease related to the applicant’s back injury, he “does not have the expertise to do so”.”
The second respondent argued that there was no evidence that an aclasta infusion (for osteoporosis) or Reandron treatment (a testosterone replacement) resulted from the injury. That submission must be accepted.
Applicant’s submissions in reply
By his submissions in reply, Mr Adhikary submitted that the second respondent should not be allowed to raise the issue of Dr Herman’s expertise in respect of renal conditions so late in the matter. It was not raised at the commencement of the arbitration hearing the applicant was prejudiced it being raised late in the history of the matter.
Mr Adhikary referred to each of the submissions made by Ms Goodman and submitted either that they were not consistent with the evidence or that they were misconceived. He reiterated that the respondent’s qualified doctor, Dr Haber, had accepted that there was a relationship between his injury and the development of hypertension, although he qualified his opinion by stating that it was only to “a minor degree”. The respondents had carefully avoided addressing Dr Haber’s opinion that renal impairment may cause or be caused by hypertension.
Discussion
It is unnecessary to dwell on the respondent’s submission that Dr Herman does not have the requisite expertise to comment on the aetiology of the applicant’s renal condition. Dr Herman is a specialist cardiologist who probably treats hypertensive patients on a regular basis. Almost certainly, the effects of hypertension are within his specialty. In any event a medical practitioner is entitled to express an opinion on a medical issue including the issue of causation. Obviously, if that evidence contradicted by a renal physician one might be inclined to accept this opinion. But that is not the case here. There is no contrary opinion from a renal physician.
There is reasonably cogent evidence that hypertension can contribute to the development of renal problems. Dr Herman plainly accepts a causal relationship between the two conditions. Dr Haber states that renal impairment may “cause or because by hypertension”. Importantly, Dr Puranik, one of the applicant’s treating cardiologists, describes the condition as hypertensive nephrosclerosis which clearly implies a connection between the hypertension and the applicant’s renal condition.
The position in respect of the applicant’s cardiac condition is not as clear-cut. The applicant has a number of different conditions which might be classified as cardiac conditions. Dr Herman associates the applicant’s aortic dilation with his hypertension, although he concedes that the causes are multifactorial. On the other hand, Dr Haber states:
“The findings on cardiac echo are easily explained by the presence of mitral valve regurgitation causing borderline left ventricular hypertrophy. Mitral valve regurgitation is NOT related to his injury”.
It is not entirely clear whether the doctors are addressing the same issue. Doing the best I can, however, it is likely that Dr Haber’s opinion is that neither the mitral valve regurgitation nor the aortic dilation is caused by the applicant’s hypertension. If that is so, it is difficult to isolate what aspects of the applicant’s cardiac condition may have been caused or materially contributed to by hypertension.
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.
SUMMARY
I have concluded that the applicant has not established on the balance of probabilities that the condition of his shoulders, renal function or cardiac condition result from the accepted employment injuries to the applicant’s back
The applicant has established that his back injuries materially aggravated his hypertension in 2001 and, again, in 2005.
Liberty to apply in respect of the applicant’s entitlement to s 60 expenses in respect of hypertension if the parties cannot agree.
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