Hunt v Tyres for Less Pty Ltd
[2021] NSWPIC 186
•16 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hunt v Tyres For Less Pty Ltd [2021] NSWPIC 186 |
| APPLICANT: | Daniel Hunt |
| RESPONDENT: | Tyres For Less Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 16 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Whole person impairment claim; injury to lumbar spine admitted; alleged injury to thoracic spine disputed; Held- applicant suffered injury to both thoracic and lumbar spine; a worker can rely on injury simpliciter despite the presence of an underlying disease; Zickar v MGH Plastic Industries referred to; Accident Compensation Commission v McIntosh followed; the contemporaneous radiological evidence in this matter overwhelmingly establishes pathological change to the applicant’s thoracic spine, as does the clinical history of complaint of pain and symptoms to his general practitioner in the immediate aftermath of the workplace injury; matter remitted to the President for referral to a Medical Assessor to determine the whole person impairment arising from the injury to the thoracic and lumbar spines. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to his lumbar spine and thoracic spine in the course of his employment with the respondent on 10 November 2016. 2. The matter is remitted to the President for referral to a Medical Assessor (MA) for determination of the whole person impairment arising from the following: Date of Injury: 10 November 2016. 3. The documents to be referred to the MA to assist with their determination are to include the following: a. this Certificate of Determination and Statement of Reasons; b. Application to Resolve a Dispute and attachments, and c. Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
On 10 November 2016, Daniel Hunt (the applicant) was working for Tyres for Less Pty Ltd (the respondent) as a tyre fitter. The applicant had worked with the respondent for a number of years.
On the date of injury, the applicant was carrying out his normal duties when he stood up from working under a vehicle. As he stood up, he twisted and began to feel pain in his back. Over the course of the day in carrying out his duties, the pain worsened. There was no specific traumatic incident which gave rise to the pain.
The respondent admits the applicant suffered an injury to his lumbar spine, however, it disputes he suffered injury to his thoracic spine. On the applicant’s own case, he must be found to have suffered injury to both alleged body parts to meet the threshold for making a claim for whole person impairment pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act).
ISSUES FOR DETERMINATION
The parties agreed that the only issue in dispute is whether the applicant suffered an injury to his thoracic spine.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing before me on 15 June 2021. 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 hearing, Mr A Parker of counsel instructed by Mr G McKean appeared for the applicant and Mr D Adhikary of counsel instructed by Ms M Nguyen appeared for the respondent.
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 (the Application), and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Injury to the thoracic spine
The applicant bears the onus of proving he suffered an injury to his thoracic spine. There is a long line of authority which states an injury must consist of a sudden or identifiable pathological change referable to the allegedly injurious event.
An applicant is able to rely on injury simpliciter despite the existence of a disease, as noted in cases such as Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310. In that sense, the terms “personal injury” and “disease” are not mutually exclusive. A sudden identifiable physiological or pathological change to the body brought about by an internal or external event can be a personal injury, and the fact that the changes are connected to an underlying disease process does not prevent the injury being a personal injury (see Accident Compensation Commission v McIntosh [1991] 2 VR 253).
In this matter, Mr Parker appropriately conceded that there were pre-existing degenerative changes to the applicant’s thoracic spine. Nevertheless, he submitted the radiological evidence by way of an MRI carried out on 1 February 2017 clearly demonstrated disc herniation at T3/4, posterior annular tear at T5/6 and a small disc herniation at T6/7 in the aftermath of the injurious event on 10 November 2016.
In his statement, which is uncontested, the applicant noted immediately following his injury, he had pain in the middle of his back together with his lower back. The GP clinical records demonstrate that on the date of injury, the applicant consulted his general practitioner
Dr El-Hafi, who recorded the following entry:“Truck tyre changer.
Was under a truck one hour ago 10/11/2016.
Was getting up.
Twisting injury to back (mid thoracic radiating up and down).
No paraesthesia.
No previous back injury.”
Subsequent entries in the GP records refer to the applicant suffering back pain which began to refer down his legs into his toes. There was some suggestion of improvement for some time, however, by 6 December 2016, the GP entries reveal the applicant still had pain in his mid-back and by 6 February 2017, the applicant was presenting with antalgic gait.
The applicant was referred for physiotherapy on 6 February 2017. At page 24 of the Application is the physiotherapy introduction form, where either the applicant or the physiotherapist has plainly shaded as areas of pain the spine from just below the shoulder blades all the way down to and including the lumbar spine.
For the respondent, Mr Adhikary noted his client’s reliance on the opinion of Dr Machart, independent medical examiner (IME).
Dr Machart found the presence of a lumbar spine injury arising from the incident on 10 December 2016, however, he stated the applicant “did not suffer injury to multiple levels of the spine. Specifically, I did not see evidence that he sustained two separate injuries, to the thoracic and lumbar spine concurrently, on the same day and the same time.” Dr Machart also noted the applicant’s presentation to him was inconsistent with the presence of a thoracic spine injury.
As noted by Mr Parker, Dr Machart’s reasoning is inadvertently circular. It is apparent he did not have the benefit of the GP clinical records which revealed contemporaneous complaint of thoracic spine pain by the applicant to the general practitioner, sufficiently serious to warrant referral for physiotherapy and MRI. It is understandable that absent that information, Dr Machart would find no evidence for a thoracic spine injury, and therefore consider the applicant’s complaints of pain in that region to be inconsistent with his findings.
I reject Dr Machart’s opinion with respect to the thoracic spine. The evidence is clear from the treating general practitioner and physiotherapist of contemporaneous and consistent complaint of thoracic spine pain. Moreover, the MRI undertaken on 1 February 2017 also demonstrates pathological change by way of disc prolapse and herniation at various thoracic spine levels.
In my view, those changes are plainly consistent with the applicant suffering an aggravation of an underlying condition on 10 November 2016, sufficient to bring about clear pathological change demonstrated on the radiology in February 2017, following consistent treatment to the thoracic and lumbar spines between the date of injury and the MRI being undertaken.
Whether the injury to either level of the applicant’s spine ultimately grounds a whole person impairment is a matter for a Medical Assessor, however, the evidence here is overwhelming in establishing the applicant made contemporaneous complaint of both thoracic and lumbar spine pain consistent with the serious identifiable pathology demonstrated in the MRI.
The only doctor whose opinion is to the contrary, Dr Machart, has not taken into account the clinical history to the treating general practitioner and physiotherapist, which is understandable given it appears he did not have them in his possession at the time of his examination and report. Nevertheless, Dr Machart’s view does not stand up to scrutiny when one has the benefit of the treating medical material which shows both contemporaneous complaint and serious thoracic spine issues on radiology.
It follows that I find the applicant suffered an injury to both levels of his spine in the course of his employment with the respondent on 10 November 2016.
Accordingly, there will be a finding in favour of the applicant on the body system in issue, namely the thoracic spine. Both that body system and the lumbar spine will be referred to a Medical Assessor to determine the degree of whole person impairment, if any, arising from the injury suffered by the applicant on 10 November 2016.
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