Huang v GMP Pharmaceuticals Pty Limited
[2024] NSWPIC 292
•31 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Huang v GMP Pharmaceuticals Pty Limited [2024] NSWPIC 292 |
| APPLICANT: | Xiaowei Huang |
| RESPONDENT: | GMP Pharmaceuticals Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 31 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sought a finding that she had suffered a central cord lesion as diagnosed by Dr Teychenne; that diagnosis was rejected; Held – the application was referred to the President for referral to a Medical Assessor in relation to a traumatic brain injury, a head injury, a neck injury and day central and peripheral nervous system injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a concussive head injury and/or a traumatic brain injury, an injury to her neck and an injury to her central and peripheral nervous system on 14 October 2019 when a box weighing 15 kilograms fell from a height onto her head from a shelf at the respondent’s premises. The Commission orders: 2. The lump sum claim is remitted to the President for a referral to a Medical Assessor to assess permanent impairment as follows: (a) date of injury: 14 October 2019; (b) body system: head, neck and central and peripheral nervous system; (c) method of assessment: whole person impairment, and (d) documents to be referred: Application to Resolve a Dispute, and Reply. |
STATEMENT OF REASONS
BACKGROUND
Ms Xiaowei Huang (the applicant) was employed by GMP Pharmaceuticals Pty Ltd (the respondent) from October 2016 until 18 January 2020 as a warehouse assistant and then as a packer on the production line.
The applicant alleges that on 14 October 2019, during the course of her ordinary employment, she was cutting boxes, situated in a bent over position, when her colleague suddenly pulled a shelf, causing a box weighing approximately 15kg to fall down onto her head and neck. She lost consciousness and fell to the ground. As a result of the incident, she alleges that she sustained permanent and ongoing injuries to her brain, head,neck and nervous system. She now suffers from ongoing symptoms.
The applicant ceased working on 18 January 2020, allegedly as a result of her injuries.
MATTERS IN DISPUTE
The respondent disputes liability in relation to the applicant’s claim to have suffered a traumatic brain injury and an incomplete central cervical cord lesion.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr John Trainor of counsel, instructed by Ms Karen Zhang of Littles Lawyers appeared for the applicant. Mr John Gaitanis of counsel, instructed by Ms Megan Davies of Hall and Wilcox Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the commencement of the conciliation/arbitration the respondent sought to rely on documents attached to its Application to Admit Late Documents (AALD) dated 8 May 2024 and lodged on 9 May 2020.
At the telephone conference the applicant alleged an injury to the lumbar spine. As a consequence the respondent arranged medical examinations. Dr O’Sullivan Independent Medical Assessor (IME) had been previously qualified by the respondent. However, he had become unwell and been obliged to retire. The respondent therefore arranged for Dr Smith, orthopaedic surgeon, and Dr Walker, neurologist, to undertake a review of Dr Teychenne’s reports. These were the reports that the respondent sought to put before the Personal Injury Commission (Commission).
The applicant’s counsel opposed the application. No lumbar injury was now being claimed by the applicant. At the conciliation/arbitration the applicant’s counsel indicated that the applicant was now confining her claim to those matters raised by Dr Teychenne[1] i.e. a concussive head injury/traumatic brain injury and an incomplete central cervical cord lesion. Therefore he submitted that the reports sought to be provided to the Commission were not relevant to the claim before it. In addition he submitted that the reports were not served within three days of the conciliation/arbitration and that relying on Dr Walker would be in breach of the rule limiting the number of specialties to be qualified in a particular claim.
[1] ARD page 106.
The respondent submitted that the attached reports, particularly that of Dr Walker, dealt with the diagnoses of Dr Teychenne and therefore should be admitted and that Dr Smith was in fact a refresher. Counsel submitted they should be considered for weight.
Whilst it was highly unsatisfactory that the respondent should have been put to the trouble of meeting allegations in relation to the lumbar spine which were subsequently abandoned on the occasion it was before the Commission for resolution, the reports were not responsive to the claim for determination before the Commission and, in any event, should have been served within time. The rules regarding time limits for service are intended to be applied unless there are special circumstances. There were no such circumstances in this case. I did not consider that the interests of justice were served by admission of the late documents. Admission was refused.
EVIDENCE
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any dispute before Commission.
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to ARD (Reply) and attached documents, and
(c) submissions lodged by the applicant’s lawyers on 13 May 2024.
The applicant’s evidence
The applicant had an extensive medical treatment history. Dr Martin, neurologist, in his report of 25 June 2020 describes the applicant’s condition as “postconcussive syndrome after a workplace injury”,[2] which he later described as unusually recalcitrant.
[2] Report ARD page 220.
Dr Duma, neurologist, notes in his report[3] to the applicant’s general practitioner of 20 May 2021:
“In summary, Ms Huang suffered a workplace injury in 2019 with persistent symptoms consistent with a persistent headache attributed to mild traumatic injury to the head, or chronic post-traumatic migraine.”
[3] ARD page 1,523.
Dr Borire, neurologist and clinical neurophysiologist, provided the following summary in his report to the applicant’s general practitioner dated 6 May 2022:[4]
“Xiaowei most likely has a post-concussion syndrome, consisting of a chronic tension-type headache, mood disorder, increasing forgetfulness, and motion-induced dysequilibrium. The character and distribution of her headache are consistent with a tensiontype headache. Underlying anxiety is most likely contributory to this, resulting in a functional overlay. This would certainly limit the efficacy of acute or chronic headache treatments.
In view of the chronicity of her headache, prophylactic treatment is required. However, she has been on four or five different options with no improvement. For now, I have opted to optimise Botox therapy. I have prescribed indomethacin 50 mg tds for two weeks. The indomethacin responsiveness of the headache may be indicative of trigeminal autonomic cephalgia even though she does not have prominent autonomic symptoms. It may also serve as a circuit breaker and provide her with a few headache-free days. I have also prescribed her pantoprazole 40 mg daily for gastrointestinal protection. For now, I have not made any changes to her dose of duloxetine which she takes for headache prophylaxis. She would certainly benefit from non-pharmacological interventions such as craniocervical exercises, acupuncture, massage therapy, or osteopathy.
Xiaowei's memory issues and slow mentation are features of post-concussion syndrome. As stated earlier, I am of the opinion that she has underlying anxiety which is contributory. I am aware that she has had a few sessions with a psychologist, and I would be interested in the reports. I would recommend concentrating on cognitive behavioural therapy, biofeedback, stress management, and/or relaxation techniques. Formal neuropsychometric assessments may be required if there is further cognitive decline or slow recovery. In the meantime, I have also arranged for her to have bilateral greater occipital nerve blocks for her chronic headache due to the occipital predominance of her pain. I intend to review her in two months to assess her progress and I will keep you updated. Please feel free to contact me if you have any concerns.”
[4] ARD page1,237.
The applicant particularly relies on the reports of Dr Teychenne (IME) dated 1 March 2022[5] and 27 June 2022.[6] Dr Teychenne reviewed the applicant’s treating doctor’s reports and her symptoms at extraordinary length. Relevant to the injury alleged in this application he concluded[7] that the applicant had a concussive head injury/traumatic brain injury with cognitive deficits particularly in memory and an incomplete central cervical cord lesion occurring as a result of acute flexion and compression of the head and neck in the presence of mild central cervical canal stenosis.
[5] ARD page 96.
[6] ARD page 99.
[7] ARD page 106.
The respondent’s evidence
The respondent relies on the report of Dr O’Sullivan dated 18 October 2022[8] where he comments on the report of Dr Berry. Dr O’Sullivan provided the following opinion:
“…the clinical diagnosis is an aggravation to a cervical degenerative disease, initially occurring with a head injury on 14 October 2019, which resolved and left no disability. Now she is having intermittent aggravations with various activities of daily living. Once the spinal degenerative process is rendered symptomatic for the first time, there is thereafter no occupational, recreational or domestic activity that the patient can engage in that is free of the risk of exacerbating the spinal degenerative disease from time to time.
….
It is conceivable that she could have sustained her initial aggravation to her cervical degenerative disease under the circumstances described with the object falling onto her head in October 2019.”
SUBMISSIONS
[8] ARD pages 523 and 526.
The applicant’s submissions
The applicant’s counsel submitted that the application was straightforward. There were two questions before the Commission. Did the applicant suffer two types of injuries, a traumatic brain injury and an incomplete central cervical cord lesion?
The circumstances surrounding the applicant’s injury are consistent with a traumatic brain injury. On different histories a box weighing somewhere between 10 and 20kg dropped on her head from a height.
Counsel relies on the fact that the applicant has been found by her treating doctors to have suffered a concussion. This includes Drs Martin, Duma and Borire. If the applicant has been found to have suffered a concussion which is a traumatic brain injury it is no leap to find that she is suffering from a traumatic brain injury post-concussion.
Counsel also submitted that, whilst the respondent’s IME Dr O’Sullivan[9] criticised Dr Teychenne’s diagnosis of an incomplete central cervical cord lesion, he did confirm that the applicant suffered a head injury, although he does not accept that her ongoing symptoms arose from that injury.
[9] Report dated 22 December 2022 ARD page 523.
In relation to Dr Teychenne’s diagnosis of an incomplete central cervical cord lesion, counsel pressed the Commission to accept that, because the diagnosis of a traumatic brain injury is not a perfect fit and the applicant’s symptoms are recalcitrant, it leaves open the possibility of a diagnosis of an incomplete central cervical cord lesion as diagnosed by Dr Teychenne.
The applicant requested a conference post the Commission’s decision on liability to determine what matters should be remitted to the President for referral to a medical assessor.
The respondent’s submissions
The respondent’s counsel submitted that the Commission could not be persuaded on the balance of probabilities as to the existence of the fact of a traumatic brain injury. Counsel relied on what he suggested was the absence of the necessary medical criteria or a finding of a brain injury. He also drew the Commission’s attention to the various references to the possibility of exaggeration or a psychological component to the applicant’s symptoms. He drew heavily on the findings of Dr O’Sullivan.
CONSIDERATION
I am not persuaded that the applicant is suffering from an incomplete central cervical cord lesion as diagnosed by Dr Teychenne. That diagnosis finds no support with any of the other neurological specialists whose evidence is before the Commission. The fact that the applicant’s symptoms are recalcitrant when considered in the context of a possible diagnosis of a traumatic head injury does not persuade me that the alternate diagnosis suggested by Dr Teychenne is available in this case.
I have considered the submission of the respondent regarding the absence of objective signs of brain injury. I do not find the submission persuasive. Whilst I have rejected Dr Teychenne’s diagnosis regarding a central cord lesion I believe the balance of his physical findings, in conjunction with the physical findings of the other neurological specialists supports a diagnosis of a traumatic brain injury. Certainly, the applicant has suffered a serious traumatic injury to her head and neck and, given her symptoms, which I have no reason to reject as not credible, I am persuaded that the applicant has suffered a brain injury and an injury to her central and peripheral nervous system, an injury best assessed by a Medical Assessor.
I will not list the ARD for further conference.
The claim will be remitted to the President for referral to a Medical Assessor.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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