Ibrahim v Sydney Trains
[2021] NSWPIC 327
•2 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ibrahim v Sydney Trains [2021] NSWPIC 327 |
| APPLICANT: | Orhan Ibrahim |
| RESPONDENT: | Sydney Trains |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 2 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation for alleged injury to lumbar spine caused by nature and conditions of employment; whether the applicant suffered workplace injury or whether lumbar spine condition is purely attributable to pre-existing degenerative changes; Held - the applicant suffered a workplace aggravation of his pre-existing degenerative condition in the lumbar spine, to which his employment was the main contributing factor (section 4(b)(ii) Workers Compensation Act 1987); in matters involving aggravations, it is the cause of the aggravation which must be examined, not the cause of the underlying condition which has suffered the aggravation; Federal Broom Co Pty Ltd v Semlitch, Kelly v Western Institute NSW TAFE Commission, Ariton Mitic v Rail Corporation of NSW followed; matter remitted to the President for referral to a medical assessor to determine the applicant’s degree of permanent impairment to his lumbar spine. |
| DETERMINATIONS MADE: | 1. Leave is granted by consent to amend the name of the respondent to Sydney Trains. 2. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent, with a deemed date of injury of 18 February 2020, being the date of the permanent impairment claim made by his solicitors on the respondent. 3. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment resulting from the following: Date of injury: 18 February 2020 (deemed) body systems referred: lumbar spine Method of assessment: Whole Person Impairment 4. The documents to be referred to the Medical Assessor to assist with their determination as we include the following: (a) the Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; and (c) Application to Resolve a Dispute. |
STATEMENT OF REASONS
BACKGROUND
Mr Orhan Ibrahim (the applicant) worked full time for Sydney Trains (the respondent) over many years as a Presentation Services Attendant. His duties involved cleaning the interior of train carriages.
The applicant states he would clean up to 16 train carriages per shift, and his work involved carrying mops and buckets, bending, prolonged standing, twisting, prolonged kneeling, and crouching while extending his arms and using rags and chemicals to remove graffiti.
These proceedings seek payment of permanent impairment compensation in respect of an alleged lumbar spine injury said to have been caused by the nature and conditions of the applicant's employment between 3 January 1995 and September 2016. The respondent denies liability, had alleges the applicant has not suffered any injury to his lumbar spine.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the applicant has suffered an injury to his lumbar spine.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 21 July 2021. The parties have agreed to the determination of the matter without a conference or formal hearing.
At the hearing, Mr R Stanton of counsel instructed by Ms L Karam, solicitor, appeared for the applicant and Mr P Rickard of counsel instructed by Mr J Turner, solicitor, 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 (the Application) and attached documents;
(b) Reply and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant has suffered injury to his lumbar spine
The applicant's claim is that he suffered an injury owing to the nature and conditions of his employment. There is no question the applicant suffers from degenerative changes to his lumbar spine, however, he brings his claim on the basis that the nature and conditions of his employment have rendered those degenerative changes symptomatic, whether by causing the changes themselves or by aggravating them.
10.The applicant bears the onus of proving that his lumbar spine condition is work-related. In matters such as the present case, where no frank injurious event is alleged, an applicant must demonstrate that the injury has been contracted by him in circumstances where his employment was the main contributing factor to contracting the disease, or there has been an aggravation of the disease process that his employment was the main contributing factor.
11.In his statement, the applicant sets out the nature of his duties. At [12] and following, he noted his duties were repetitive, strenuous, and required to be carried out for prolonged periods of time. The tasks included cleaning carriages, emptying garbage bins, continuous walking along station platforms, stairs and through train carriages, picking up rubbish, cleaning beneath the seats on each carriage, which involved repetitive bending and stooping, as well as squatting, mopping, scrubbing, cleaning graffiti with chemicals and rags, carrying a heavy mop and bucket around with him during the shift, repeatedly climbing in and out of train cabins, general cleaning of surfaces with rags, and having to switch between the various movements required in these tasks, which he states were strenuous and led to “fatigue” in his lower back.
12.Mr Stanton submitted there was no evidence to contradict that of the applicant, and the nature of his role was perfectly consistent with the evidence which he has given. He submitted the lay and medical evidence in this matter was sufficient to enliven the disease provisions under the Workers Compensation Act 1987 (the 1987 Act).
13.Mr Stanton noted that Dr Herald, treating orthopaedic surgeon, had provided a report to the applicant's general practitioner, Dr Khan, on 12 December 2014 in which he referred to MRIs of the applicant's back showing severe degenerative changes with L5/S1 and L4/5 facet joint hypertrophy and mild central canal stenosis with neural compression. It should be noted that the report was forwarded to the respondent's insurer. At the time of his examination of the applicant, Dr Herald noted tenderness over the lumbar spine, restricted motion, a positive straight leg raise, particularly on the right side and gave an opinion that the pain seem to be radiating from the applicant's back down his legs to the heels.
14.In early 2015, the applicant was referred to Dr Donnellan, Neurosurgeon, who took the following history:
“On 09/12/2013, he developed bilateral leg pain while he was working. Initially, it was going down the outer aspect of both legs but his current symptom is complaint to the right leg. He has also had increasing lower back pain for the past four months. He denies any significant low back pain and back injuries before this.
His right sided sciatica is currently situated in the lateral aspect of his calf with pain also radiating from his right buttock into his lateral aspect of his right thigh. He denies any paraesthesia and numbness. The low back pain is worse with walking and with doing any activities associated with his cleaning job...
I think that given his symptoms are consistent with the right L5 radiculopathy and this is the area of maximum neural impingement on the imaging, so it would be reasonable for him to undergo a right L5/S1 transforaminal injection of steroid."
15.As noted, there is no question the applicant suffered a previous injury. The documents in evidence include those surrounding a redemption from the then Compensation Court which the applicant took in the 1980s. That claim included an injury to the lower back. It is therefore apparent that the applicant's description of having had only a minor injury to his lumbar spine in the 1980s which bothered him for only a few months is not accurate.
16.Nevertheless, I do not accept Mr Rickard's submission that the applicant was knowingly dishonest in his portrayal of his prior injury. He volunteered the injury having taken place in his statement, and I do not consider his incorrect recollection as to the inclusion of his back in a redemption as indicative of a lack of honesty on his part. Moreover, there is no issue the applicant had a lengthy work history after that redemption which included years of undertaking repetitive and heavy manual work with the respondent. It is therefore apparent the applicant was able to continue in the work force with minimal, if any, concerns regarding his low back until the alleged injury in issue.
17.The respondent submitted that there was only limited direct support for the allegation of injury raised by the applicant, and that was in the form of Independent Medical Examiner (IME) Dr Assem. Mr Rickard submitted the reports of the treating doctors which refer to low back symptoms are insufficient to draw an inference as to causation that the worsening of them was linked to his employment.
18.I am of the opinion, on the balance of probabilities, that the preponderance of the evidence discloses the applicant having suffered an injury to his lumbar spine owing to the nature and conditions of his employment. There is treating doctor evidence which self-evidently refers to the onset of symptoms around 2013 and 2014.
19.Whilst the respondent's medico-legal opinions are to the effect that the applicant's problems are all due to degenerative changes in his spine, those reports barely engage with the alternative view put by the applicant's evidence that his employment was the main contributing factor to the worsening of the applicant's lumbar spine symptoms. The respondent's medical evidence, in my opinion, largely ignores the potential correlation between the applicant's long standing heavy work duties and the onset and worsening of his lumbar spine symptoms.
20.Whilst it is trite to say that correlation is not causation, what is required is a common-sense evaluation of the causal chain and all of the evidence, before a determination is made as to the aetiology of the applicant's lumbar spine condition: see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
21.Dr Casikar, IME for the respondent, provided an opinion in which he stated the applicant's employment was not the main contributing factor to the injury, which he said was a progressive condition that developed over time. According to Dr Casikar, the applicant's "job description does not suggest any specific injuries. Mr Ibrahim would have developed these symptoms at this stage in his life irrespective of his employment."
22.In his second report, Dr Casikar provided the following opinion:
“Mr Ibrahim genetically determined the constitution or degenerative disease of the lumbar spine. [sic] There had been no specific injury. The popular opinion that the nature of the job produces degenerative disease and other problems in the back is not supported by evidence-based studies. It is possible that Ibrahim had some aggravation due to the nature of the job on a pre-existing severe lumbar canal stenosis. In my opinion, this aggravation has ceased. His present problems are entirely related to his constitution or degenerative disease."
23.In my view, there are some difficulties with Dr Casikar's opinion. Firstly, it is not suggested that the applicant's employment has caused degenerative changes. Rather, the suggestion is that the injury is by way of aggravation to that degenerative disease. In those circumstances, what needs to be determined is whether the applicant's employment was the main contributing factor to any aggravation, not to the degenerative condition itself: see for example Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71, Ariton Mitic v Rail Corporation of NSW (Matter number 8497 of 2013, 8 April 2014 per Arbitrator Harris (as he then was)). There is ample authority, beginning with the High Court decision in Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626, that is the exacerbation or aggravation whose cause must be identified, rather than the cause of the underlying disease process itself.
24.The applicant's evidence in this matter concerning the nature and extent of his duties is uncontested. The respondent has not put forward any way evidence to contradict the nature and extent of his duties, which are set out in detail and which he states he carried out over many years.
25.In the respondent's submissions, Mr Rickard took the Commission to the Medical Assessment Certificate (MAC) of Dr Noll in prior proceedings dealing with the applicant’s shoulder injuries in which Dr Noll took a work history of the applicant having undertaken light duties since approximately 2006. Mr Rickard submitted that this history contradicts the applicant's version of events and his support for the proposition that the nature and extent of the duties which he was carrying out since that time could not have been the main contributing factor to his lumbar spine injury.
26.I reject that submission for the following reasons. Firstly, the respondent would be in a position as a long-standing employer of the applicant to know whether he was carrying out only light duties up to and including 2013. It has provided no evidence to this effect, despite the applicant’s statement being in evidence since the filing of the Application.
Secondly, Dr Noll's history contradicts the contemporaneous medical evidence and the histories taken by all other medical practitioners in this matter. That is not a criticism of Dr Noll, it is simply a variance in the history recorded. To the extent there is a variance between Dr Noll’s history as to the nature and conditions of the applicant’s employment, I prefer the histories taken by the other experts in this matter. Dr Noll’s history of the applicant having undertaken light duties only since 2006 is an outlier. No other practitioner, including the respondent’s own IME Dr Casikar, refers to anything approaching a history consistent with that taken by Dr Noll.
28.Mr Rickard took the Commission to a number of WorkCover medical certificates from early 2014 and late 2013, which he noted made no mention was made of lower back pain, instead noting the certificates focused on the applicant's plantar fasciitis. Whilst I accept that submission, I note the medical certificate at page 1263 of the Reply dated 7 March 2014 provides, contrary to Mr Rickard's submission that the applicant has only been certified for light duty since 2006, that he was fit for employment between 17 February 2014 and 28 March 2014 working his regular hours and regular days per week, subject only to taking regular breaks every 30 minutes from prolonged walking and standing.
29.Moreover, I note the applicant initially made a claim in relation to his lower back in 2016, by which time he was self-evidently receiving treatment, as recorded by his treating neurosurgeon and orthopaedic surgeon.
30.If the respondent's submission to the effect that the applicant had longstanding lower back issues since the time of his redemption in the mid-1980s was correct, I do not believe that he would have been in a position to carry out his duties as a cleaner in the manner which he describes over the course of so many years. Rather, in my view, the balance of the medical evidence supports a finding that the nature and conditions of his employment have aggravated the pre-existing condition in his lumbar spine.
31.In his report to the applicant's general practitioner dated 23 February 2015, Dr Donnellan noted the applicant had increasing lower back pain for approximately four months and noted the low back pain was worse with walking and "with doing any activities associated with his cleaning job". Although that comment is understandably not a direct comment on causation given Dr Donnellan is a treating surgeon, it is nonetheless contemporaneous treating doctor evidence of the applicant's symptoms increasing in line with the nature and conditions of his employment. That is to say, consistent with the line of authorities commencing with Semlitch, the experience of the low back condition was worsened as a result of the applicant's employment.
32.I also note that the respondent's IME, Dr Casikar, concedes the possibility of the applicant having suffered a work-related aggravation of his underlying condition, however, he says that aggravation would have passed. Such an argument is one commonly seen in this jurisdiction, however, absent some explanation as to why the effects of any workplace aggravation in this instance would have passed and the applicant's current symptoms can purely be put down to the underlying degenerative condition, such an opinion represents a bare ipse dixit statement. As such, I do not accept it.
33.Further support for the applicant's nature and conditions of employment being the cause of an aggravation of his back condition is found in the report of Dr Yasmin Khan, Occupational and Environmental Physician, dated 12 January 2021. Dr Khan diagnosed the applicant as suffering mechanical lower back pain which "is a nature and conditions claim from December 2013. The nature of the work required cleaning of up to 16 train carriages per shift. This role in itself involves repeatedly bending and twisting of the lower back and carrying a bucket and mop."
34.In his last report dated 21 April 2021, Dr Assem diagnosed the applicant as having chronic mechanical low back pain with right sided S1 radiculopathy. In relation to causation, Dr Assem ascribed the applicant's condition to the nature and conditions of his employment. Dr Assem said:
“Mr Ibrahim developed chronic mechanical low back pain with right S1 radiculopathy that was caused, aggravated, accelerated or exacerbated by the nature and conditions of his employment as a cleaner over a 21-year period. He has concordant evidence on radiological imaging of pathology at the same level."
35.Moreover, Dr Assem answered the contention of Dr Casikar that the nature and conditions of employment cannot cause degenerative disease and said:
"The lumbar spine can be injured just like any other part of the body. Repetitive lifting, bending, and twisting over a period of time can generate sufficient forces within the disk to cause it to protrude through a path of least resistance, namely microscopic injuries to the annulus fibrosus, tears or complete ruptures as can occur with any ligament. With aging, there is the gradual development of degenerative changes that can lead to a disc extrusion with much less trauma. Given that Mr Ibrahim is an elderly gentleman with underlying age-related degenerative changes, he was susceptible to a low back injury due to the nature and conditions of his employment...
It was his exposure to unaccustomed repetitive bending and lifting in an environment where he did not have any control on the weight lifted, frequency or posture that he was required to adopt that caused his back injury.
According to the AMA Guides to the Evaluation of Disease and Injury Causation, there are studies that show high manual handling and materials to be a significant risk factor for cumulative recurrence of low back pain in scaffolders (p 200)."
36.On balance, I am of the view that Dr Assem's opinion is consistent with both the pathology exhibited by the applicant and the history of his long-standing nature and conditions of employment. That history, in turn, is consistent with the clinical records of his treating surgeons, Dr Donnellan and Dr Herald, who each noted mechanical back pain in or about 2014 and 2015 upon referral by the applicant's general practitioner.
37.There is no issue the applicant has suffered significant pathological change in his lumbar spine. That much is agreed by both parties and all of the medical experts in the case. The only question is whether the applicant's symptoms, which have caused him such difficulty over a long period of time, have been caused by the nature and conditions of his employment in the relevant sense required by section 4(b) of the 1987 Act.
38.In my view, the medical evidence clearly demonstrates on the balance of probabilities that the nature and conditions of the applicant's employment were the main contributing factor to the aggravation of his underlying degenerative changes, and for the reasons, he suffered a relevant workplace injury to his lumbar spine in the course of his employment with the respondent.
SUMMARY
39.For these reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination and remit the matter to the President for referral to a Medical Assessor for determination of the applicant's permanent impairment in his lumbar spine.
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