Ilijoska v Cormack Packaging Mfg Pty Ltd
[2021] NSWPIC 109
•6 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ilijoska v Cormack Packaging MFG Pty Ltd [2021] NSWPIC 109 |
| APPLICANT: | Nada Ilijoska |
| RESPONDENT: | Cormack Packaging MFG Pty Ltd |
| MEMBER: | Ms Rachel Homan |
| DATE OF DECISION: | 6 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for further lump sum compensation under section 66 of the 1987 Act; accepted orthopaedic injuries; whether applicant sustained consequential hypertension and diabetes conditions as a result of injury; whether significant weight gain; inconsistent histories regarding onset of conditions; Held-consequential conditions accepted; matter remitted to President for referral to a Medical Assessor to assess the degree of further permanent impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained consequential hypertension and diabetes conditions as a result of the injury to her left shoulder, cervical spine and lumbar spine due to the nature and conditions of her employment with the respondent until 5 August 2009. 2. The matter is remitted to the President for referral to a Medical Assessor to assess the degree of further permanent impairment as follows: Date of injury: Nature and conditions of employment until 5 August 2009 Body parts/systems: Lumbar spine Cardiovascular system (Hypertension) Method: Whole Person Impairment. 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments; and the documents attached to Applications to Admit Late Documents lodged by the applicant on 9 April 2021 and by the respondent on 20 April 2021. |
STATEMENT OF REASONS
BACKGROUND
Ms Nada Ilijoska (the applicant) was employed by Cormack Packaging MFG Pty Ltd (the respondent) as a process worker. The applicant claims that as a result of the nature and conditions of her employment with the respondent from 1993 until 5 August 2009 she sustained injury to multiple body parts.
In previous proceedings before the former Workers Compensation Commission, the applicant was awarded lump compensation in relation to the injury pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 14% whole person impairment (WPI) of her cervical spine and left upper extremity (shoulder) in accordance with a Medical Assessment Certificate (MAC) issued by Approved Medical Specialist Dr J Dixon Hughes. Dr Dixon Hughes assessed the applicant as having 0% WPI of her lumbar spine and upper and lower digestive tracts as a result of the injury.
The present proceedings were commenced in the former Workers Compensation Commission on 11 February 2021 and now come before the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.
The applicant seeks further lump sum compensation under s 66 of the 1987 Act in respect of the lumbar spine injury as well as consequential hypertension and diabetes conditions. Liability for the injury to the lumbar spine is not disputed. The consequential conditions were, however, disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 13 January 2020, 30 October 2020 and 4 January 2021.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing via Audio Visual Link on 27 April 2021. The applicant was represented by Mr Luke Morgan of counsel, instructed by Mr Martin Bell. The respondent was represented by Mr Damien Toohey of counsel, instructed by Ms Phoebe Singer. A representative of the insurer was also present.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential hypertension condition as a result of the injury;
(b) whether the applicant sustained a consequential diabetes condition as a result of the injury, and
(c) the degree of further permanent impairment resulting from the injury.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and all attachments;
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 9 April 2021; and
(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 20 April 2021.
Neither party applied to adduce oral evidence or cross examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements signed by her on 4 February 2021 and 4 April 2021.
In the first statement, the applicant gave evidence that she first started experiencing injuries as a consequence of her employment in 1997 when she suffered numbness in her left hand and fingers. A left carpal tunnel release was performed after which the applicant returned to full duties.
Due to the nature and conditions of her work the applicant experienced significant pain in her left shoulder and numbness in both hands but continued to work.
The applicant ceased work on 5 August 2009 after feeling a sharp pain in her neck and shoulder when trying to lift a heavy box onto a pallet above shoulder height.
The applicant stated that on 24 January 2007, her general practitioner, Dr Nguyen, diagnosed her with hypertension and she was prescribed medication. The applicant’s prescription was changed on 12 June 2007 by another general practitioner, Dr Devsam.
The applicant’s hypertension medication dosage was increased on 4 September 2008.
On 2 December 2008, Dr Nguyen suggested that the applicant undergo a glucose tolerance test which was done on 30 December 2008. The applicant was told that the test indicated that she had impaired glucose tolerance.
On 26 September 2012, the applicant’s hypertension medication was changed. The applicant was also referred for a glucose pathology test which was performed on 27 September 2012. The applicant was reported to have impaired fasting glycaemia. Further glucose testing was performed on 8 October 2012.
The applicant’s hypertension medication was again changed on 22 October 2012.
The applicant underwent a glucose pathology test on 10 May 2013.
On 27 August 2013, the applicant’s hypertension medication dosage was increased and the applicant was also advised to undergo a further glucose tolerance test which the applicant took on 29 August 2013. Further glucose tolerance tests were undertaken on 11 April 2014 at 11 May 2015.
On 24 May 2016, the applicant was told by Dr Al-Salih that she met the criteria for a diabetes diagnosis. The applicant was prescribed Diabex XR and Metformin hydrochloride and told to begin a diabetic diet.
Following further testing, the applicant was told on 27 September 2016 that her fasting glucose level had dropped due to the medication she was taking.
The applicant stated:
“As a consequence of stopping working, I was immobile, suffered significant weight gain and had a heavy intake of anti-inflammatory and analgesic medication to cope with my continued pain. I was also getting increasingly anxious and depressive.
A couple of years after my injury my blood pressure increased due to my consequential sedentary life. I had always been active and until my injury I always had good blood pressure readings.”
In her supplementary statement, the applicant said that her blood pressure had increased due to her sedentary lifestyle as a consequence of her injury. The applicant was extremely stressed because of her injury and inability to work. The applicant said she was diagnosed with diabetes in 2016.
The applicant said she had significant fluctuations in her weight since 2009:
“When l ceased working my weight was 61kg. From then up until 2012, it steadily rose to at least 69kg. In 2016 and 2017, I needed to seek a weight management assistance plan from GP. My weight has been recorded as 61kg when I saw Dr Herman 22 July 2019 and Dr Carter 13 August 2020. My current weight is 62kg. I am 151cm tall and BMI of 27.”
The applicant said her medication for hypertension had been increased at a recent consultation with her general practitioner on 16 March 2021 due to an extremely high reading of 200/120.
Treating medical evidence
Amongst the materials in evidence are clinical records from a number of general practices visited by the applicant.
A clinical note dated 24 January 2007 recorded by Dr Ngoc Tuyen Nguyen stated:
“Reason for contact: Hypertension
Actions: prescription added: FELODUR ER TABLET 10mg 1 daily”On 12 June 2007, Dr Joshua Devsam changed the applicant’s hypertension medication prescription to “KARVEZlDE 156/125 TABLET 150mg/125mg mane m.d.u,”. That prescription was increased to 300 mg/12.5 mg daily on 4 September 2008.
On 9 July 2007, the applicant was prescribed Mobic. On 22 July 2007, the applicant was prescribed Voltaren tablets. In July 2008, the applicant was prescribed Stillnox.
On 2 December 2008, Dr Nguyen referred the applicant for a fasting glucose test, which was performed on 30 December 2008.
On 5 January 2010, orthopaedic surgeon, Dr Graham Mahoney wrote to the applicant’s general practitioner, Dr M Pukanic with regard to the applicant’s orthopaedic symptoms. The applicant was recorded to weigh 66 kg.
Dr Ahmad Al-Salih performed a blood pressure check and referred the applicant for fasting glucose tests on 26 September 2012. Upon receipt of the results, Dr Al-Salih recorded on 8 October 2012 that the applicant was seen for hypertension and Impaired Fasting Glycaemia. The applicant was prescribed Zestril 20 mg 1 daily for her blood pressure.
The applicant’s Zestril prescription was ceased and she was commenced on Coveram 10 mg/5 mg daily on 15 October 2012. The Coveram prescription was increased to 10 mg/10 mg daily in 27 August 2013.
Dr Al-Salih’s clinical records contain regular blood pressure checks as well as referrals for intermittent glucose tolerance tests and complaints of anxiety and depression in the context of the applicant’s work injuries.
On 8 September 2013, Dr Al-Salih, prepared a care plan under which the applicant was referred to a diabetic clinic.
On 14 May 2014, Dr Al-Salih prepared a GP Management Plan, which included as key management strategies and goals, weight management and physical activity. Similar plans were prepared on a regular basis thereafter.
On 20 February 2015, Dr Jayanthi Krishnamohan, recorded that the applicant weighed 65 kg and was complaining of bloating, worse after meals. The applicant was prescribed Nexium.
On 30 June 2016, the applicant was referred to a diabetic educator and dietician.
On 5 July 2016 a diabetes service dietician at the Wollongong Hospital recorded that the applicant weighed 63.3 kg. Those records relevantly noted that the applicant’s weight had been stable at 62 to 63 kg for a long time and the applicant was “not concerned or interested in weight loss”.
It was further noted that the applicant tested her blood glucose levels every morning and these did improve if the applicant exercised in the morning. It was noted that the applicant was consuming three meals and three snacks per day, including biscuits with coffee before breakfast. A number of dietary recommendations were made. The applicant’s social and personal history was recorded as:
“Lives with husband. Independent with ADLS. Does shopping and cooking with husband.”
On 22 December 2016, Dr Al-Salih recorded that the applicant weighed 60 kg.
Wollongong Hospital records noted the applicant’s weight on 17 April 2018 was 62 kg and 62.4 kg on 24 April 2018.
Dr Giblin
Orthopaedic surgeon, Dr Matthew Giblin, prepared a series of medicolegal reports in respect of the applicant’s injury.
In his first report, dated 21 November 2017, Dr Giblin noted the applicant alleged that in and around August 2009, she was lifting a box when she developed pain in her left shoulder, lower back and neck.
Dr Giblin noted that he found the applicant’s history confusing and he was not sure whether the applicant went off work or was on light duties or for what period of time. The applicant appeared to have returned to work in March 2010 before giving up work in June 2010 due to pain.
Dr Giblin noted:
“Presently she lives in a house with her husband, he does most of the housework. She has difficulty with vacuuming, mopping, cooking, cleaning, carrying the washing, carrying the shopping, hanging the washing on the line and cleaning the bath, shower and the toilet. She is able to manage her personal care such as washing and dressing provided she is slow and careful. Her left shoulder affects her affects her with putting on jackets and jumpers and she can’t lie on the left side at night. She gets about four hours sleep at night.
…
Her social life is restricted and she doesn’t get out as much as she used to.”
Dr Herman
With respect to the alleged consequential hypertension condition, the applicant relies on a medicolegal report prepared by a consultant cardiologist, Dr Mark Herman, dated 22 July 2019.
Dr Herman took a history of the injury that included:
“Mrs Ilijoska is a 66 year old lady with a history of hypertension commencing shortly after an accident at work on 5 August 2009.
Mrs Ilijoska tells me that prior to her work related injury on 5 August 2009, that she had no history of hypertension. … She had not taken blood pressure medications, was not under regular review from her general practitioner for hypertension and was a fit and active lady.
On 5 August 2009, she sustained an injury to her left shoulder and upper extremity, left hand and wrist as well as the right upper extremity following lifting of heavy boxes weighing us much as 17kg in a repetitive fashion.
After her injury, she developed a number of risk factors for the generation of hypertension including weight gain from 61 to 68kg, decreased mobility over a 6 month period, constant pain, anti-inflammatory consumption and anxiety.
On this background, in 2012 she was diagnosed with hypertension and has required combination therapy for control ever since.”
Dr Herman considered the medications the applicant was taking, performed an examination and considered an echocardiogram.
Dr Herman made an assessment of 10% WPI and gave the following opinion on causation:
“In my opinion, following her work related injury, there was significant weight gain, immobility, pain, consumption of anti-inflammatory medications and the development of anxiety all of which contribute significantly to hypertension. This was not evident prior to her injury, occurs in the absence of any other significant risk factors for her hypertension and I feel is significantly work related.”
Dr Herman prepared a supplementary report on 11 May 2020 in which he was asked to comment on a report from the expert qualified by the respondent, Dr Richard Haber:
“In your correspondence, you state that she began to suffer significant symptoms and took time off work long before eventually stopping work on the 5th of August 2009 and that she began to suffer symptoms of her left wrist well before 2007. At that stage she was not sleeping, had become anxious but continued to work. In summary therefore, I feel that her WPI remains 10% based on the fact that she did not have hypertension prior to commencing work and negate Dr Haber’s correspondence stating that her blood pressure began in 1997.”
Dr Carter
With respect to the alleged consequential diabetes, the applicant relies on medicolegal reports prepared by consultant endocrinologist, Dr John Carter, dated 13 August 2020 and 7 April 2021.
In his first report, Dr Carter took a history of the applicant’s injury as follows:
“Mrs Ilijoska had a very active job working for Cormack Packaging MFG Pty Ltd. The date of injury was stated to be 5 August 2009, but the injuries sustained had developed over some years prior to that. The precipitating factor on 5 August 2009 appeared to be lifting numerous boxes weighing as much as 17 kg from the floor up to at least shoulder height and she suffered injuries to her left shoulder and upper arm, left hand and wrist, right upper arm and hand and wrist, neck, mid and lower back, and both lower legs. She has not been able to work since the date of the injury.”
Dr Carter noted the history of testing set out in the clinical records. This included a two hour glucose tolerance test on 10 December 2008 which showed a slightly raised fasting plasma glucose level (PGL). This test indicated that the applicant had a condition called impaired glucose tolerance (IGT).
The applicant was subsequently documented to have impaired fasting glycaemia (IFG) on 27 September 2012.
The applicant satisfied the criteria for a diagnosis of diabetes with a test performed on 11 May 2015.
Dr Carter said:
“Both IGT and IFG can been termed ‘pre-diabetes’ and indicate a genetic susceptibility to diabetes. The natural history of both of those conditions is progression to higher PGLs over time, leading a diagnosis of diabetes.”
Dr Carter further noted:
“There has been no change in weight since the injury on 5 August 2009 as she states that she weighed 61 kg at that time and her current weight is 61 kg. However, there has been a significant reduction in her physical activity since she stopped work. When she was at work, she was on her feet all day and was very active on most days moving heavy boxes. She also undertook housework and shopping, but currently she is not able to carry shopping bags and is unable to undertake the housework. She walks for half an hour each day as part of her treatment for the diabetes, and she states that if she does not walk, her PGLs increase.”
With regard to the causal relationship between the applicant’s diabetes and her employment with the respondent, Dr Carter gave the opinion:
“Mrs Ilijoska clearly had a genetic predisposition for diabetes and this was first noted in the documents provided to me following the GTT on 10 December 2008. In people with a genetic predisposition for diabetes, the diagnosis of diabetes can occur earlier than it otherwise would have if there had been significant weight gain or reduction in exercise and physical fitness. The injury sustained on 5 August 2009 was not associated with subsequent weight gain, but there was a reduction in her ability to undertake exercise following that date. This would have resulted in an increase in insulin resistance whereby the efficiency with which insulin facilitates the transport of glucose from the blood into the cells is reduced. This has a tendency to elevate the PGLs.
Thus the injury did not cause the diabetes but it is likely that the subsequent reduced physical activity resulted in her PGLs increasing at a slightly earlier time than they would have if the injury had not developed.
Consequently, even though the WPI due to the diabetes is 6%, I would apportion 4% WPI to her pre-existing genetic factors and 2% WPI to the injury itself.”
In his supplementary report, Dr Carter was provided with new information that the applicant’s weight increased between 2009 and 2012 when her weight rose to exceed 69 kg. The applicant’s weight subsequently reduced to 61 kg by 2020. Dr Carter responded:
“I indicated in my original report that increased weight and reduced physical activity are two of the numerous factors that can precipitate the onset of diabetes at an earlier time than otherwise would have been the case in genetically predisposed individuals. There is evidence that Mrs Ilijoska had a genetic predisposition for diabetes and this resulted in an abnormal blood glucose level in 2008, prior to the deemed date of injury on 5 August 2009. On the basis of the natural history of type 2 diabetes, it is therefore extremely likely that her blood glucose levels would have progressively increased & that diabetes would have developed at some stage following 2008 even if there had not been any injury affecting her weight or physical activity. Regarding Mrs Ilijoska, it is not possible to differentiate between the effects of transient weight gain or reduced physical activity with respect to the earlier time of onset of the diabetes.
For reasons explained in my report on 13 August 2020, Mrs Ilijoska’s WPI relating to her type 2 diabetes is 6% and I apportioned 4% WPI to the underlying genetic predisposition, which had affected her blood glucose levels prior to the deemed date of injury. None of the new information you have provided to me causes me to alter my opinion.”
Dr Haber
The respondent relies on medicolegal reports prepared by cardiologist, Dr Richard Haber dated 27 November 2019 on 16 December 2019.
In his first report, Dr Haber took a very broad history of the applicant’s work injury and noted her cardiac and respiratory symptoms. The applicant was noted to weigh 62 kg. After performing an examination and reviewing an echocardiogram, Dr Haber diagnosed labile hypertension most likely with white coat hypertension.
Asked for his opinion in respect of the applicant’s condition and its relationship to employment, Dr Haber responded:
“Her Hypertension has been aggravated by the stress and pain from her orthopaedic problems.”
Dr Haber made an assessment of 11% WPI after a 1/10 deduction for pre-existing tendency to hypertension.
In his supplementary report, Dr Haber reviewed the clinical records, which showed:
“According to the notes from her local doctor she was treated with Felodur for hypertension in January 2007 and this was changed to Karvezide 150/12.5 on 4 October 2007, at which time she was also treated with Mobic or Voltaren. On 4/09/08 this was increased to 300/12.5 and on 2/12/08 she was still on Karvezide 300/12.5 as well as Mobic. During that time actual BP readings were not recorded in the notes. On 21/07/09 Dr Devsan reported that she suffered from neck and shoulder pains as well as hypertension.”
Dr Haber was asked whether his WPI assessment changed in light of this material. Dr Haber responded:
“She told me that she was started on treatment for hypertension in June 2010. She was on treatment for hypertension already in January 1997 and on 4 September 2008 was on Karvezide 300/12.5 ie. prior to August 2009 accident. Currently she told me she was on Avapro 300/12.5mgm tablets. Avapro and Karvezide are the same medication only with different names. She has been already on the same drug in the same dosage already prior to her accident.
Her WPI for hypertension is 12% with pre-existing hypertension also 12%. Accordingly her WPI is 0% (zero %) due to her accident.”
Dr Gorman
With respect to the alleged consequential diabetes condition, the respondent relies on a medicolegal report prepared by pain specialist and consultant general physician, Dr David Gorman, dated 7 April 2021.
Dr Gorman noted that glucose tolerance tests in 2008 showed impaired glucose tolerance. The applicant had a number of raised blood sugar levels over the years after this. Formal blood testing confirmed the diagnosis on 11 May 2015. After this, the applicant was started on diabetex, had dietary modifications and walked every day. Dr Gorman stated:
“The injury was not associated with any weight gain. With the multiple musculo skeletal injuries there was a reduction in her ability to exercise. However, in 2016 the notes from the Wollongong Diabetes Centre reported that she was going for 30–45-minute walks each morning.”
Dr Gorman noted Dr Carter’s report of 13 August 2020 in his opinion that it was likely that the reduction in physical activity resulted in the increase in plasma glucose levels and brought on diabetes at an earlier time than had the work injury not occurred. Dr Gorman commented:
“There is some evidence that the ‘metabolic syndrome’, which includes insulin resistance and high blood sugar, can occur with decreased exercise and be improved by increased exercise. ‘Metabolic syndrome’ includes high blood sugar, excess body fat around the waist and abnormal cholesterol levels. This syndrome is usually associated with weight gain. Reduction in exercise in the absence of weight gain would be difficult to attribute as a causative factor for the development of diabetes mellitus.
Dr Carter quite rightly has identified the genetic factors in this case.
I do not believe that the environmental factors in this case are in any way sufficient to blame any inactivity (which is doubtful anyway) on the work injury.
I particularly note also that the accepted work injuries are to the cervical spine and left shoulder in particular and these are less likely to result in decreased aerobic exercise than injuries to the lumbar spine.”
Asked for his opinion in respect of the diabetes and its relationship to employment, Dr Gorman responded:
“As outlined above, I do not consider her condition is related to employment. She has not gained weight. There are genetic factors which cause Type II diabetes mellitus. I do not believe that the alleged decrease in exercise would cause diabetes mellitus without weight gain. I believe that any assessed whole person impairment related to diabetes mellitus is totally related to genetic factors and therefore is 0%.”
Relevant historical medicolegal evidence
On 27 October 2009, psychologist Ms Jenny Wells prepared a Pre-Liability Assessment for the respondent’s insurer. Ms Wells took a history of the applicant experiencing an increasing level of pain as a result of her work-related tasks which had led the applicant to suffer psychological distress. Ms Wells interviewed the applicant’s general practitioner, Dr Pukanic, who reported that the applicant appeared very anxious and depressed. The applicant’s anxiety related to worry about her condition and uncertainty about her future. The applicant was distressed by her physical pain caused by heavy lifting in the workplace. Dr Pukanic had referred the applicant to a clinical psychologist.
The applicant’s treating psychologist, Dr Abu-Arab reported that the applicant was experiencing depressed mood, insomnia and difficulty engaging in day-to-day duties and hobbies. The applicant’s psychological distress was resulting from her physical pain. Dr Abu-Arab diagnosed an adjustment disorder with mixed anxiety and depressed mood.
The applicant reported that she had experienced an increase in food intake as a result of sleeping poorly and been bored at home. The applicant reported significant frustration because she felt restricted by her physical pain. The applicant stated she had ceased most activities including household chores as a result of her physical pain. The applicant described herself as feeling sad and unhappy.
Ms Wells gave the opinion,
“Ms Ilijoska is experiencing psychological signs and symptoms of distress, predominantly characterised by depressed effect, poor relationships with others, and an increased food intake. In addition, Ms Ilijoska identified a number of symptoms that she related to her physical pain, such as significant sleep disturbance and a lack of engagement with activities. Ms Ilijoska identified that the symptoms had been occurring in increasing frequency for the past two years.
I am of the opinion that at the time of taking leave from work and at the current time, Ms Ilijoska’s symptoms of distress were and are of adequate frequency and severity to warrant a clinical diagnosis of adjustment disorder with depressed mood…”
A medicolegal report was prepared for the insurer by orthopaedic surgeon, Dr Ian Barrett on 15 December 2010. At the time of Dr Barrett’s examination, the applicant weighed 64 kg.
In a report for the insurer dated 29 November 2012, gastroenterologist, Dr Margaret Gillies, recorded the applicant’s weight as 60 kg.
Orthopaedic surgeon, Dr Vijay Panjratan, reported to the insurer on 7 November 2019 that the applicant weighed 61 kg.
Applicant’s submissions
Mr Morgan noted that the applicant had previously claimed lump sum compensation under s 66 of the 1987 Act in respect of specific injuries to her cervical spine, lumbar spine and left upper extremity as well as consequential gastrointestinal conditions. The applicant had previously been awarded lump sum compensation in accordance with a Medical Assessment Certificate issued in 2014. The only contentious matter in these proceedings was whether the applicant had developed consequential conditions of hypertension and diabetes as a result of the injury.
Mr Morgan submitted that on one reading of the medical evidence, the applicant had a constitutional predilection to diabetes and hypertension. Following the injury, however, the applicant ceased full-time physical employment which had been undertaken for a period of some 16 years. The applicant’s employment with the respondent was physical and of such a nature that she had been found to have resulted in 14% WPI by Dr Dixon Hughes. As a result of the injury, the applicant’s previous level of physical activity was no longer possible and this led to the development of the consequential conditions.
Mr Morgan observed that it was not necessary for the applicant to establish that employment with the respondent was “the main contributing factor” or “a substantial contributing factor” to the conditions of hypertension or diabetes. Referring to the authority in March v Stramare
(E & MH) Pty Ltd[1], Mr Morgan submitted that all that was required was a broad analysis of the matters going to causation.[1] [1991] HCA 12.
Mr Morgan referred to the applicant’s statement evidence. The applicant said that, as a consequence of stopping work, she became immobile, gained weight, was required to take anti-inflammatories and analgesic medication and became anxious and depressed.
Mr Morgan referred to the clinical records from the applicant’s general practitioners. Mr Morgan noted the references to hypertension in clinical records dated 24 January 2007 and 8 October 2012 as well as the glucose testing undertaken. Mr Morgan conceded that there were few references to the applicant’s weight in the general practitioner’s notes although on 20 February 2015 the applicant’s weight was recorded to be 65 kg.
The applicant was placed under a series of care plans by her general practitioner from around May 2014 which recorded goals and actions associated with weight management. In mid-2016, the applicant was referred to the Illawarra Local Health District for dietary assessment and education. The applicant’s weight at the time was recorded at 63.3 kg. At that time, however, the applicant’s weight had been stable for a long period under the care of her general practitioner.
Referring to the medicolegal evidence, Mr Morgan noted that the doctors had consistently commented on the applicant’s flat presentation and demeanour. There was no dispute that the applicant was having difficulty coping mentally with her physical issues. Mr Morgan referred in this regard to the report of Ms Jenny Wells.
Mr Morgan noted that Dr Giblin’s reports on the injury had recorded the restrictions on what the applicant was and was not able to do. The applicant was only able to get four hours of sleep, had not been able to get out as much and was quite restricted in her daily activities.
Mr Morgan accepted that Dr Herman had recorded a history that was not in accord with what was recorded in the general practitioner’s notes. Dr Herman’s history was of no hypertension prior to the work-related injury on 5 August 2009 whereas the clinical notes referred to the development of hypertension in 2007. Mr Morgan noted that the applicant’s history was provided through the services of an interpreter and in the context of her depression this could explain the confusion.
Dr Herman also took a history of weight gain and decreased mobility. Dr Herman gave the opinion that the combination of a number of factors were causative of the applicant’s hypertension including weight gain, immobility, pain, the consumption of medication and anxiety all of which were linked to the applicant’s injury and pain and the cessation of work. Although the applicant’s weight gain was subsequently brought under control, the other factors remained relevant.
Mr Morgan noted that in Dr Herman’s supplementary report he maintained his opinion after considering the report of Dr Haber.
Mr Morgan submitted that Dr Haber’s first report conceded that the applicant’s hypertension condition would be aggravated by stress and pain. Mr Morgan submitted that Dr Haber’s report supported a consequential relationship between the applicant’s hypertension and the consequences of her injury. Dr Haber accepted from a causative point of view that the applicant’s psychological issues and pain contributed to her elevated blood pressure levels.
Although Dr Haber made a 100% deduction pursuant to s 323 of the 1998 Act in the WPI assessment in his supplementary report, the appropriate deduction would be a matter for a Medical Assessor to determine in these proceedings. Dr Haber’s previous opinion on causation was not altered.
Mr Morgan referred me to Dr Carter’s reports and said he had provided a comprehensive opinion that the reduction in the applicant’s ability to undertake exercise would have resulted in a more rapid onset of diabetes.
Mr Morgan observed that Dr Gorman said there was evidence that a metabolic syndrome could occur with decreased exercise and be improved with increased exercise. Although Dr Gorman found it difficult to attribute this as a causative factor for the applicant’s development of diabetes, he had not ruled that out.
Mr Morgan concluded that the respondent’s medicolegal evidence was consistent with an aggravation of the applicant’s hypertension due to physical and psychological factors. The causal relationship between the injury and the applicant’s diabetes had been identified by Dr Carter but not ruled out by Dr Gorman. Mr Morgan submitted that there should be a referral to a Medical Assessor for an assessment of the degree a further permanent impairment in respect of all three body systems claimed.
Respondent’s submissions
Mr Toohey took me to the references to the applicant’s weight in the treating and medicolegal evidence and submitted that there was no evidence of any “significant weight gain”.
Mr Toohey noted that the applicant gave evidence that she was diagnosed with hypertension in January 2007. Mr Toohey noted that Dr Haber had recorded a history of hypertension since 1997 but conceded that was possibly an error. It was unclear when the blood pressure medication was commenced but the applicant had been taking blood pressure medication before her most significant injuries and before any incapacity for work due to the injury.
Mr Toohey submitted that the applicant had attempted to explain the variation in her weight in her supplementary statement. That further history had been provided to Dr Carter but he was not moved by that information. The medical evidence available did not indicate any significant change in the applicant’s weight contrary to the applicant’s evidence.
Mr Toohey acknowledged the opinion given by Dr Herman but submitted that his opinion was only as good as the history provided to him. The history provided to Dr Herman was not correct insofar as he recorded that the applicant’s hypertension was diagnosed after the injury. In fact, the applicant’s hypertension was diagnosed several years earlier.
Dr Herman also relied on a history of weight gain following the 2009 injury which was not borne out on the evidence. Mr Toohey submitted that the value of Dr Herman’s evidence was undermined by the incorrect history provided to him.
Mr Toohey noted that Dr Carter took a history of the applicant undergoing numerous glucose tests. Those tests failed to support a diagnosis of diabetes until 11 May 2015. Dr Carter did not initially take a history of any weight gain although the applicant did describe a reduction in movement. The applicant did, however, report that she was walking half an hour each day. Dr Carter’s significant deduction for pre-existing genetic factors in his assessment of WPI was not persuasive evidence that the applicant’s condition was significantly or relevantly work-related.
After referring to the clinical evidence, Mr Toohey submitted that there was no persuasive evidence to conclude that any of the applicant’s injuries as a result of work would have prevented her from exercising. There was no persuasive evidence of unstable weight gain. With regard to the applicant’s diabetic condition, the applicant had predisposing factors. The applicant’s poor diet was noted in the evidence.
Mr Toohey referred me to the medicolegal reports of Dr Haber and Dr Gorman. Dr Haber considered there had been no change in the applicant’s blood pressure medication since that prescribed before the applicant went off work. Dr Haber did not consider the applicant had any WPI related to work.
Dr Gorman found no evidence of significant weight gain on his file review. Dr Gorman was not persuaded that the applicant would have been prevented from exercising as a result of the injury. The applicant’s diet was poor.
Based on these reports, Mr Toohey submitted that the applicant would have suffered from the effects of the hypertension and diabetes in any event, irrespective of the work injury.
Applicant’s submissions in reply
Mr Morgan described the issue of the applicant’s weight gain as a “red herring”. Mr Morgan submitted that Dr Haber’s concession could not be avoided. No effort had been made to explain away that opinion in his subsequent report.
With regard to Dr Carter’s opinion, the only contrary voice was that of Dr Gorman who did not rule out a causal relationship.
The evidence all pointed to the applicant suffering a reactive psychological condition.
Referring to the decisions in Woolworths Limited v Christopher-Coates[2] and EMI (Australia) Ltd v Bes[3], Mr Morgan distinguished the scientific and legal tests for a causal relationship.
[2] [2014] NSWWCCPD 14.
[3] [1970] NSW R 238, [1970] WCR 114.
FINDINGS AND REASONS
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It has been accepted by the respondent that the applicant sustained an “injury” as a result of the nature and conditions of her employment with the respondent to her left shoulder, cervical spine and lumbar spine. What requires determination is whether the applicant has sustained consequential hypertension and diabetes conditions as a result of the injury.
It is not necessary for the applicant to establish that the hypertension and diabetes conditions are themselves an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[4] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[4] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[5], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[5] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[6], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[6] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
In March v Stramare (E & MH) Pty Ltd[7] Mason CJ said of causation:
“It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because ‘questions of cause and consequence are not the same for law as for philosophy and science’, as Windeyer J. pointed out in The National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961) 105 CLR 569, at p 591. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill's definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage: see McLean v. Bell (1932) 147 LT 262, per Lord Wright at p 264; Sherman v. Nymboida Collieries Pty. Ltd. (1963) 109 CLR 580, per Windeyer J. at pp 590- 591.”
[7] [1991] HCA 12 (at [5]).
It is the applicant who bears the onus of establishing, on the balance of probabilities, that the consequential conditions alleged have been sustained[8].
[8] See, for example, Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
There is no dispute on the evidence before me that the applicant suffers from both hypertension and diabetes. There has, however, been some discrepancy in the histories provided to the medicolegal experts with regard to the onset of those conditions.
Having regard to the treating medical evidence, I am satisfied that from at least January 2007 onwards the applicant was diagnosed with and treated with medication for hypertension. The reference to a diagnosis of hypertension in 1997 by Dr Haber is not reflected elsewhere in the evidence before me. There is, however, no evidence prior to January 2007 to confirm whether hypertension was diagnosed or treated at an earlier time.
The clinical records before me also indicate that the applicant underwent regular testing which revealed raised plasma glucose levels from December 2008 onwards. The applicant’s plasma glucose levels increased over time sufficiently to warrant a diagnosis of diabetes from May 2015 onwards.
I accept on the evidence, therefore, that the applicant was being treated and/or investigated for both conditions prior to the cessation of her employment with the respondent.
It is important to consider the nature of the injury. The injury which has been accepted by the insurer and from which the consequential conditions are claimed to have resulted is one which occurred progressively over time as a result of the nature and conditions of the applicant’s employment. Although there appears to have been a particular event precipitating the cessation of employment on 5 August 2009, the evidence indicates that the applicant was experiencing increasing pain and restrictions in the relevant body parts prior to this date.
There is no dispute that the applicant’s employment with the respondent was physical in nature. The applicant was employed as a process worker and this appears to have involved her standing on her feet and repetitively lifting heavy boxes. It has previously been determined that this work resulted in 14% WPI of the applicant’s cervical spine and left shoulder. The injury to the applicant’s lumbar spine was not, in 2014, found to have resulted in any permanent impairment.
The applicant claims that as a result of her musculoskeletal injuries and upon cessation of her employment with the respondent she became “immobile”. Having regard to the physical nature of the applicant’s work, I do accept that there was a reduction in physical activity following the cessation of work.
Less than three months after the cessation of work, Ms Wells recorded that the applicant reported that she had experienced an increase in food intake as a result of sleeping poorly and being bored at home. The applicant felt restricted by her physical pain. The applicant stated she had ceased most activities including household chores as a result of her physical pain. This is consistent with the history later recorded by Dr Giblin.
The applicant does, however, appear to have subsequently increased her physical activity. There are GP Management Plans in evidence, which included goals around weight management and physical activity from May 2014 onwards. The diabetic dietitian at Wollongong Hospital recorded in July 2016 that the applicant was exercising in the mornings. Dr Carter recorded that the applicant walked for half an hour each day as part of her treatment for diabetes.
Whilst I accept that the applicant has had and continues to have physical restrictions in her activities of daily living as a result of her injury, I do not accept that she has been rendered immobile. I find that since around mid-2014, the applicant has been assisted by her treating practitioners to reintroduce physical activity or exercise to manage her medical conditions.
Considerable time was spent in submissions on the question of whether there was a significant weight gain following the cessation of employment. The applicant’s evidence and the history eventually provided to both Dr Herman and Dr Carter was of a significant weight gain from 61 up to 69 kg following the cessation of employment.
The contemporaneous medical evidence does indicate that there was some fluctuation in the applicant’s weight following the cessation of employment. There is no contemporaneous evidence of the applicant’s weight at the time she ceased employment, although the applicant has consistently said it was around 61 kg. On 5 January 2010, orthopaedic surgeon, Dr Graham Mahoney recorded the applicant’s weight at 66 kg. This had reduced to 64 kg at the time the applicant was seen by Dr Barrett in December 2010. In November 2012, the applicant’s weight was recorded at 60 kg. On 20 February 2015, Dr Jayanthi Krishnamohan, recorded that the applicant’s weight was 65 kg. By mid-2016 it was recorded that the applicant’s weight had been stable at between 62 and 63 kg “for a long time” and she was not interested in weight loss. More recently the applicant’s weight has been recorded at around 61 to 62 kg.
On the basis of this evidence, I accept that the applicant has experienced weight fluctuations of up to 5 kg since the cessation of her employment. I am not satisfied on all the evidence that the applicant’s weight increased from 61 kg to 68 or 69 kg as claimed.
I am satisfied on the evidence before me that the applicant has experienced significant secondary psychological symptoms as a result of her physical injury. This is commented on in many of the reports before me, most significantly in the report of Ms Wells. I accept that the applicant’s psychological symptoms have been considered sufficient to warrant a diagnosis of adjustment disorder by her treating practitioners.
It is on this factual background that I have approached the medicolegal opinions.
Hypertension
With regard to the hypertension condition, the applicant relies on the reports of Dr Herman. In his first report, Dr Herman gave the opinion that following the applicant’s work injury, there was significant weight gain, immobility, pain, consumption of anti-inflammatory medications and the development of anxiety, all of which contributed significantly to hypertension. Dr Herman took a history that the applicant was diagnosed with hypertension in 2012 and, prior to 5 August 2009, had no history of hypertension and had not taken blood pressure medications. On this basis, Dr Herman concluded that the applicant’s hypertension was significantly work related.
The history upon which this opinion was based was problematic in several aspects. As indicated above, I am not satisfied that there was a significant weight gain from 61 to 68 kg as had been reported to Dr Herman. Whilst I am prepared to accept that there was a significant decrease in the applicant’s mobility, I do not accept that she was “immobile”. Importantly, the applicant had already been diagnosed with and treated with medication for hypertension well before the cessation of work on 5 August 2009. Having regard to these material defects in Dr Herman’s history, I am not satisfied that there is a fair climate for the acceptance of the opinion given in his first report.
The applicant’s solicitors attempted to clarify the history when requesting a supplementary report from Dr Herman. At the time of his second report, Dr Herman appears to have appreciated that hypertension was diagnosed and treated with medication from January 2007 onwards. Dr Herman noted, however, that the applicant was suffering from the effects of her musculoskeletal injuries prior to the cessation of work. The applicant was already not sleeping and had become anxious. Dr Herman made no adjustment to his previous assessment of the degree of permanent impairment based on the fact that the applicant did not have hypertension prior to commencing employment with the respondent.
Dr Herman’s opinion remains somewhat problematic. The history with regard to weight gain and mobility provided to him was not corrected to one which was consistent with that found by me above. It is also noted that the applicant commenced employment with the respondent in 1993. Dr Herman’s reasoning that the applicant did not have hypertension prior to commencing work but did by the time she ceased work, does not logically account for the range of other factors that could have precipitated the onset of hypertension including the applicant’s advancing age and genetic predisposition. Dr Herman did not explain whether he considered that the applicant’s injury was causative of the development of hypertension or an aggravation of that condition. Dr Herman’s reasoning process is not otherwise explained.
In considering what weight should be given to Dr Herman’s amended opinion it is appropriate to consider the opinion given by the expert qualified by the respondent, Dr Haber. Dr Haber initially gave an opinion favourable to the applicant, stating that her hypertension had been “aggravated by the stress and pain from her orthopaedic problems”. That the applicant was experiencing psychological symptoms including stress and pain as a result of her orthopaedic problems is not disputed. Dr Haber initially assessed the applicant as having 11% WPI after a 1/10 deduction for pre-existing tendency to hypertension.
Dr Haber was, however, asked to provide a further opinion after considering the applicant’s clinical records. Having regard to that additional information, Dr Haber revised his deduction for pre-existing condition to 100%. Dr Haber reasoned that the applicant’s current medication dosage was the same as that prior to the cessation of work due to the injury.
Mr Morgan has submitted that Dr Haber’s previous opinion on the causal relationship between the work injury and the applicant’s hypertension was not altered in his supplementary report. Further, the appropriate deduction pursuant to s 323 of the 1998 Act would be a matter for a Medical Assessor to determine in these proceedings.
Whilst it is correct that Dr Haber did not explicitly alter his previously expressed opinion, I do accept that the 100% deduction and the reasoning process employed in his supplementary report could be read as being consistent with a view that the work injury did not result in any aggravation of the applicant’s hypertension.
That said, I am not prepared to draw that conclusion on the basis of Dr Haber’s supplementary report alone. Dr Haber did not comment further on the possible impact of the stress and pain caused by the applicant’s work injury. Dr Haber also did not take into account the gradual onset of orthopaedic symptoms prior to the cessation of work. Dr Haber did not comment on the blood pressure readings recorded in the evidence, changes in the applicant’s prescriptions between the cessation of work and his examination, or the evidence of other lifestyle changes in accordance with the GP Management Plans.
As a result, I am not satisfied that either expert has provided a fully reasoned or reliable opinion on the relationship if any between the applicant’s hypertension condition and the work injury. It is, however, the applicant who bears the onus of proof.
Both experts appear to accept that pain and stress caused by the applicant’s work injury could aggravate the applicant’s hypertension. Although the applicant already had hypertension requiring treatment with medication prior to the cessation of work, the evidence indicates that she was experiencing pain and suffering from psychological symptoms associated with her injury for a considerable period of time prior to the cessation of work also. Other factors which Dr Herman considered would contribute to hypertension including consumption of anti-inflammatory medications and reduced mobility are also made out on the evidence.
Considering the evidence as a whole, whilst I am not satisfied on the balance of probabilities that the applicant’s work injury caused the onset of hypertension, I do feel a sense of actual persuasion that the pain, psychological symptoms, anti-inflammatory medication and reduction in mobility caused by the work injury aggravated the applicant’s hypertension. I am satisfied that a consequential hypertension condition has resulted from the injury.
It will be a matter for a Medical Assessor to determine what degree of permanent impairment, if any, has resulted from that condition.
Diabetes
With regard to the diabetic condition, the applicant relies on the reports of Dr Carter.
In his first report, Dr Carter engaged in a detailed analysis of the clinical records and took a history of the injury but no weight gain. This was not inconsistent with the factual findings I have made above. Dr Carter considered that the significant reduction in the applicant’s physical activity since she stopped work would have resulted in her plasma glucose levels increasing at a slightly earlier time than they would have if the injury had not developed.
Whilst Dr Carter was subsequently invited by the applicant’s solicitors to reconsider his WPI assessment in light of the applicant’s evidence of a significant increase in her weight, Dr Carter’s assessment did not change. The reasoning in Dr Carter’s supplementary report is somewhat opaque. It is clear, however, that the evidence of fluctuations in the applicant’s weight did not change Dr Carter’s earlier opinion that there was 2% WPI after deduction resulting from the injury.
I am satisfied that Dr Carter has provided a reliable opinion on the causal relationship between the applicant’s work injury and her diabetic condition.
The respondent relies on the report of Dr Gorman. Consistently with Dr Carter’s initial report, Dr Gorman took a history of no weight gain associated with the injury. Dr Gorman did accept that the multiple musculoskeletal injuries would have caused a reduction in the applicant’s ability to exercise. Dr Gorman did, however, note the evidence from mid-2016 of the applicant managing her diabetes with exercise.
Dr Gorman accepted that there was evidence that a “metabolic syndrome”, which includes insulin resistance and high blood sugar, can occur with decreased exercise and be improved by increased exercise. Dr Gorman considered that this was, however, usually associated with weight gain. Dr Gorman did not believe that the alleged decrease in exercise would cause diabetes mellitus without weight gain in the applicant’s case.
In giving this opinion, Dr Gorman appears to have expressed some doubt about the extent of any reduction in the applicant’s physical activity having particular regard to the evidence of regular exercise from around mid-2016 and the location of her orthopaedic injuries. Dr Gorman has not given detailed consideration to the evidence regarding the applicant’s physical condition contemporaneous to the date on which work ceased. Dr Gorman has also not addressed the evidence of weight fluctuations of up to 5 kg or the impact of the applicant’s efforts to manage her weight in accordance with the GP Management Plans.
For these reasons, Dr Gorman’s report does not cause me to place less weight on the opinion of Dr Carter.
Weighing the evidence as a whole, I am satisfied, that a consequential diabetes condition has resulted from the injury.
It will be a matter for a Medical Assessor to determine what degree of permanent impairment, if any, has resulted from that condition.
SUMMARY
The applicant sustained consequential hypertension and diabetes conditions as a result of the injury to her left shoulder, cervical spine and lumbar spine due to the nature and conditions of her employment with the respondent until 5 August 2009.
The matter is remitted to the President for referral to a Medical Assessor to assess the degree of further permanent impairment as follows:
Date of injury: Nature and conditions of employment until 5 August 2009
Body parts/systems: Lumbar spine
Cardiovascular system (Hypertension)
Endocrine system (Diabetes)Method:Whole Person Impairment.
The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments; and the documents attached to Applications to Admit Late Documents lodged by the applicant on 9 April 2021 and by the respondent on 20 April 2021.
0
12
0