Khoury v Roosters Traffic Control Pty Ltd
[2024] NSWPIC 307
•13 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Khoury v Roosters Traffic Control Pty Ltd [2024] NSWPIC 307 |
| APPLICANT: | Tony Khoury |
| RESPONDENT: | Roosters Traffic Control Pty Ltd |
| MEMBER: | Sophie Jones |
| DATE OF DECISION: | 13 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for permanent impairment pursuant to section 66; whether the applicant sustained a consequential condition at his lumbar spine as a result of the accepted workplace injuries; degree of permanent impairment resulting from injury; Held – the applicant sustained a consequential condition at his lumbar spine as a result of the accepted injuries to his right shoulder and cervical spine on 13 July 2016; the matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a consequential condition at his lumbar spine as a result of the accepted injuries to his right shoulder and cervical spine on 13 July 2016. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: (a) Date of injury: 13 July 2016 – personal injury (b) Body systems / parts: (i) right upper extremity (right shoulder) (ii) left upper extremity (left shoulder) – consequential condition (iii) spine (cervical spine) (iv) spine (lumbar spine) – consequential condition (v) TEMSKI / scarring (c) Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, (b) Reply and attached documents, and (c) Application to Admit Late Documents and attached documents. |
STATEMENT OF REASONS
BACKGROUND
On 13 July 2016, Mr Tony Khoury (the applicant) sustained injuries while working as a traffic controller for Roosters Traffic Control Pty Ltd (the respondent).
The insurer accepted liability for injury to the applicant’s right shoulder and a consequential condition in his left shoulder occurring on 13 July 2016. The applicant underwent right shoulder surgery in October 2016 and further surgery to his right shoulder in January 2020. The applicant subsequently underwent left shoulder surgery in August 2022.
In earlier proceedings related to this matter, before the former Workers Compensation Commission, it was determined that the applicant also suffered a frank injury and consequential condition at his cervical spine on 13 July 2016 and that proposed cervical spine surgery was reasonably necessary.[1]
[1] Workers Compensation Commission matter 5380/18, Decision of Arbitrator Elizabeth Beilby, 13 December 2018. Application page 121.
The applicant underwent cervical spine surgery on 14 February 2019 performed by Dr Renata Abraszko and underwent bilateral carpal tunnel decompression surgery on 2 October 2018 and 11 June 2019, also performed by Dr Abraszko.
On 6 July 2020, the applicant underwent decompressive lumbar surgery at L4/5 and L5/S1 performed by Dr Abraszko, which was approved and paid for by the insurer.[2]
[2] Application to Admit Late Documents, pages 1-2.
The current proceedings relate to a claim made by the applicant on the insurer for compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injuries to his bilateral shoulders, cervical spine, consequential condition in his lumbar spine and scarring.
The insurer issued notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 29 August 2023 and 21 March 2024, disputing liability for the claimed consequential condition at the lumbar spine and bilateral carpal tunnel syndrome.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (Application) in the Personal Injury Commission (Commission) on 5 March 2024.
ISSUES FOR DETERMINATION
The respondent accepts that the applicant suffered injury on 13 July 2016 to his cervical spine and right shoulder and a consequential condition to his left shoulder.
The applicant did not press the injury of carpal tunnel syndrome.
Scarring is in dispute only to the extent that it relates to the disputed lumbar spine condition. It is not in dispute in relation to the accepted injuries.
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential condition at his lumbar spine as a result of the accepted injuries sustained on 13 July 2016, and
(b) the degree of permanent impairment resulting from the injuries, including associated scarring.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 6 May 2024 in Sydney. The applicant was represented by Mr Trainor of counsel, instructed by Mr Ton of Ton Legal. The respondent was represented by Mr Doak of counsel, instructed by Ms Brown of Hicksons Lawyers. The applicant was in attendance, supported by his niece. A representative from AAI Limited t/as GIO (the insurer) was also in attendance.
Due to technical difficulties, counsel for the respondent advised that he had not been able to access the application and reply documents before the conciliation conference and arbitration hearing and sought leave to provide written submissions. The applicant neither consented to nor opposed the respondent’s request. I determined it was in the interests of justice to grant leave to the respondent to lodge written submissions by 13 May 2024 and provide the applicant with the opportunity to lodge any submissions in reply by 20 May 2024. A short extension to that timetable was allowed, extending the time for the respondent’s submissions to 15 May 2024 and the applicant’s submissions in reply to 22 May 2024.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents filed by the applicant on 8 April 2024 and attached documents.
By agreement, the reports of Dr Michael Coroneos dated 6 July 2017[3] and Dr Farhan Shahzad dated 13 August 2018[4] were included in the reply documents solely for the purpose of history.
[3] Reply pages 13-28.
[4] Reply pages 31-43.
Oral evidence
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s statement
The applicant’s evidence is set out in signed statements dated 13 April 2018,[5] 13 April 2022[6] and 20 November 2023.[7]
[5] Application pages 3-6.
[6] Application pages 1-2.
[7] Application pages 829-831.
In his statement dated 13 April 2018,[8] the applicant states that after the incident on 13 July 2016, he returned to work on light duties, sorting paperwork, and he continued to perform those duties until he underwent surgery on his right shoulder.
[8] Application page 4.
In his statement dated 20 November 2023,[9] the applicant states that following the first right shoulder surgery on or about 8 October 2016, he had a period off work and then returned to work performing the same light duties as he had before his surgery. The light duties consisted of sorting and filing documents into boxes and to perform that work, the applicant was seated on a milk crate, repetitively bending and twisting to sort documents into alphabetical order. The applicant also had to bend, carry and drag heavy document boxes.
[9] Application pages 829-831.
The applicant states that he did this work four days a week, for between four and eight hours a day. The milk crate was extremely uncomfortable and his knees were higher than his bottom, putting stress on his low back. The applicant became aware of low back pain while he was performing the light duties, which he reported to his general practitioner (GP) on or about 24 July 2017, although he states at the time his main concern was his right shoulder and neck.
The applicant advised his manager that the pain in his low back from the light duties was too much to bear and he was then moved to a small desk and chair to perform the work and was no longer allowed to carry the boxes.
The applicant recalls performing the light duties up until about July 2017.
Following neck surgery in February 2019, the applicant recalls he wore a neck brace for a few months and was also required to use a wedge-shaped pillow. The applicant states that due to the neck brace and pillow, he could not lie flat to sleep and his back symptoms worsened significantly during this period. As a result of worsening back symptoms, the applicant underwent lumbar spine surgery on 6 July 2020.
Medical evidence
Extensive medical evidence was filed with the Application and Reply. As injuries to the cervical spine, right shoulder and left shoulder consequential condition are not in dispute, I will refer only to entries directly relevant to the issues in dispute.
West Hoxton Medical Centre clinical notes
The GP clinical notes record a consultation on 8 January 2013 for back pain.[10] A bone scan was requested with the notation, “L lower back pain and L hip pain”. A prescription was issued for Panadeine Forte tablets.
[10] Application page 72.
The whole body bone scan results dated 30 January 2013 state:[11]
“Comment
1. Severe left facet joint arthritis at C3/4. Mild disco-vertebral joint arthritis at C4/5 and C5/6.
2. No active facet joint or disco-vertebral joint arthritis in lumbar spine. No sacro-ilitis, hip joint arthritis or left ischial bursitis.
3. Moderately severe tricompartmental arthritis in both knees (more prominent on the right) with right supra-patellar bursitis.
4. Mild to moderately severe arthritis at the TMT joints of both feet with right posterior impingement syndrome.”
[11] Reply pages 280-281.
Back pain is recorded in two further consultation records dated 6 May 2013[12] and 27 September 2013.[13]
[12] Application page 74.
[13] Application page 77.
No further record of back pain appears in the GP notes until 20 April 2016[14] which notes:
“Lower back pain and tenderness over coccyx”.
[14] Application page 91.
Local heat, rest and analgesia is recorded as the treatment in that record and a prescription was issued for Endone tablets.
The work incident occurred on 13 July 2016 and the applicant reported it to his GP the following day.[15]
[15] Application page 92.
Following the work incident a consultation record dated 24 July 2017[16] records “poor posture at work due to need to bend and carry heavy boxes…kicking them and dragging”.
[16] Application page 105.
A consultation record dated 7 March 2018[17] states, “Will start work on Monday on trial basis”. The only other reference to a “trial” is found on 20 July 2018.[18] The GP record sates, “Trial contact psychologist failed. Continue same management. Awaits date for operation”.
[17] Application page 113.
[18] Application page 642.
A record of 13 March 2018[19] records “neck pain, shoulders pain, back pain”.
[19] Application page 114.
Back pain is again recorded on 29 March 2018[20] and 18 September 2018.[21]
[20] Application page 115
[21] Application pages 640-641.
Consultation records from 27 February 2019, 7 March 2019 and 12 March 2019[22] record the applicant wearing a neck brace.
[22] Application page 634
Back pain is then noted in consultation records from 5 April 2019,[23] 8 May 2019,[24] 11 May 2019,[25] 21 August 2019[26] and 10 March 2020.[27]
[23] Application page 633.
[24] Application page 631.
[25] Application page 631.
[26] Application pages 626-627.
[27] Application page 618.
There are further references in the clinical notes to back pain following the lumbar surgery performed on 6 July 2020.
Included in the clinical notes is a list of medications that have been prescribed to the applicant.[28] According to these records, Panadeine Forte was first prescribed in July 2004 and has been prescribed regularly from March 2006. Endone was first prescribed in May 2006 and has been prescribed regularly since January 2013. Other pain medications were also prescribed to the applicant during the period from 2004 to 2023.
[28] Application pages 803-818.
Dr Renata Abraszko clinical notes
A report from neurosurgeon and spinal surgeon Dr Renata Abraszko dated 15 January 2019,[29] notes that the applicant’s cervical spine surgery had been approved by the insurer and was scheduled for 14 February 2019.
[29] Application pages 183-184.
A report dated 30 May 2019[30] (three months post-surgery) states that the applicant did not need to wear the neck brace any more. In this report Dr Abraszko notes that the applicant complained of back pain and recommended an MRI of the lumbar spine.
[30] Application pages 187-188.
Dr Abraszko notes on 18 July 2019[31] that the last time she saw the applicant, wearing a postural neck brace was recommended. Dr Abraszko also notes that the applicant was having “severe back pain radiating down to his right leg” and an MRI showed “quite significant canal narrowing and right lateral recess narrowing at L4-L5 level. There are multilevel disc protrusions at L3-L4, L2-L3, and L5-S1 levels.”
[31] Application pages 189-190.
Dr Abraszko’s report dated 5 September 2019[32] again records “severe back pain” and “multilevel disc protrusion, worse at L4-L5 and L5-S1 level when there is decrease of the disc height and foraminal narrowing. That causes quite significant back pain.”
[32] Application pages 191-192.
Dr Abraszko recorded on 12 December 2019[33] that the applicant’s back pain was getting worse.
[33] Application pages 193-194.
Dr Abraszko’s report dated 27 February 2020[34] states the following:
“After the cervical spine surgery when he was sleeping in a hard collar due to medical requirement after his surgery, he was having a pillow which put his body in uncomfortable position and aggravated his lower back pain. Since that time he has a constant back pain radiating down to his right leg. I recommended him right L5-S1 epidural injection. We are asking insurance company to recognise his back pain as being aggravated by his postoperative management of his cervical spine.”
[34] Application pages 195-196.
On 14 May 2020, Dr Abraszko reported[35] that the applicant underwent injections twice with no improvement. The applicant reported lower back pain radiating down his right leg and MRI of the lumbar spine showed “right-sided L4-L5 and L5-S1 lateral recess compromise and compression of the right L5 and S1 nerve roots, which corresponds to his problem.” Dr Abraszko recommended L4-5 and L5-S1 decompression and requested approval from the insurer.
[35] Application pages 199-200.
Dr Abraszko recorded[36] that the applicant underwent L4-L5 and L5-S1 decompression surgery on 6 July 2020.
[36] Application pages 203-204.
Radiological investigation reports
A lumbar spine MRI report dated 5 June 2019 records the following conclusion:[37]
“Multilevel degenerative disc and facet joint arthropathy in the mid/lower lumbar spine as described above. Right-sided foraminal narrowing at the L4-L5 and L5-S1 levels with possible impingement of the respective exiting right L4 and L5 nerve roots.”
[37] Application pages 378-379.
A subsequent MRI report dated 25 November 2019 concluded:[38]
“Discovertebral change throughout the lumbar spine. There is canal stenosis particularly at L4-5 and there is right L4 and L5 foraminal root compression as well as right L5 lateral recess root impingement related to an L5-S1 extruded disc fragment.”
[38] Application pages 380-381.
Injury Treatment emails
Emails from rehabilitation consultants from Injury Treatment Occupational Injury Management were in evidence.[39]
[39] Reply pages 326-338.
An email dated 5 July 2017[40] states the applicant is to undertake administrative duties in the office three days per week.
[40] Reply page 328.
An email dated 3 August 2017[41] states that the applicant reported experiencing a “further aggravation of his neck and shoulder pain whilst completing office based duties” and “Mr Khoury advised that he had been required to bend and lift boxes located on the ground whilst performing the office based suitable duties which he believed to be detrimental for his injury.”
[41] Reply page 331.
An email dated 7 August 2017[42] records:
“Injury Treatment confirmed the current suitable administrative duties which were available to Mr Khoury which would involve Mr Khoury working on the ground level at a standing workstation and placing files individually into archive boxes. Mr Khoury would be required to lift files of up to 2kg from floor to waist height with the use of his left arm and would be able to request for assistance at all times from other staff to perform tasks which exceed his capacity.
Injury Treatment provided recommendations for Mr Khoury to perform the above duties at an appropriate seated or standing workstation located with a work surface height located at waist height to reduce the risk of aggravation of Mr Khoury's right shoulder or neck symptoms through reaching to access items at pallet height. Injury Treatment additionally recommended that Mr Khoury receive supervision and ongoing support whilst performing the above suitable duties to ensure that he is able to work within his lifting capacity and avoid performing duties which exceed this.
Mr Khoury's employer agreed that the recommended workplace modifications would be implemented and confirmed that supervision and support would be available to Mr Khoury upon his return to work.
Mr Khoury's employer confirmed that additional administrative duties were available in the office including sorting invoices at a seated workstation. Injury Treatment observed that the additional duties would involve lifting less than 100g with one hand, occasional forward reaching and constant working at a seated workstation which would be within Mr Khoury's recommended restrictions from Dr Dave (Treating Orthopaedic Surgeon) in relation to his right shoulder injury.
…
Injury Treatment were advised that the suitable administrative duties were available to Mr Khoury for a limited period of time due to accumulation of previous paperwork however office based duties were not available on an ongoing long term basis.”
Qualified evidence
[42] Reply pages 332-333.
Dr Uthum Dias
The applicant relies on reports of occupational physician Dr Uthum Dias, dated 11 April 2023[43] and a supplementary report dated 30 October 2023.[44]
[43] Application pages 132-156.
[44] Application pages 823-828.
In his report dated 11 April 2023, Dr Dias records the history that:
“Following his cervical spine surgery in February 2019, Mr Khoury recalls that he began to experience worsening symptoms of pain in his lumbar spine region. Mr Khoury attributed his symptoms of pain in his lumbar spine region to altered sleeping patterns at night-time following cervical spine surgery. Mr Khoury recalls that he had to wear a hard collar over his neck for three months post-operatively, which limited his ability to move or turn in bed. He began to experience worsening lower back pain and stiffness as well as radicular symptoms in his lower limbs by April 2019. Mr Khoury reported his symptoms to his neurosurgeon, Dr Abraszko, in May 2019 and was referred for an MRI scan of his lumbar spine (performed on 5th June 2019). The MRI scan revealed disc protrusions at the L4/5 and L5/S1 levels with compromise of the right L4/L5 nerve roots, on a background of degenerative lumbar spondylosis. Mr Khoury subsequently underwent two cortisone injection in his lumbar spine region, in July 2019, and April 2020, with no significant improvement. Dr Abraszko recommended surgical intervention in relation to Mr Khoury's lumbar spine condition.”
Dr Dias also records that following the incident on 13 July 2016, the applicant returned to work on light duties, continued to work sporadically on light duties for about 12 months and stopped working at some stage in 2017.
Dr Dias’ clinical examination of the applicant noted, among other things, a 5cm scar at the cervical spine, a 14cm scar on the right shoulder, a 6cm scar at the left shoulder and a 7cm and 1cm scar at the lumbar spine.
In relation to the lumbar spine, Dr Dias provided the following diagnosis:
“Mr Khoury sustained a consequential aggravation of previously asymptomatic degenerative lumbar spondylosis, with an associated persisting left L5 radiculopathy, secondary prolonged altered sleeping postures post cervical spine surgery in February 2019. Mr Khoury began to worsening experience lumbar spine and lower limb radicular symptoms within 2 months of cervical spine surgery due to having to wear a hard neck collar for 3 months post-surgery, limiting his mobility whilst sleeping and consequently aggravating previously asymptomatic pre-existing degenerative lumbar spine changes. Mr Khoury underwent decompressive lumbar spine surgery at the L4/5 and L5/S1 levels, on 6th July 2020. He continues to suffer with lower back pain and left lower limb radicular symptoms at 34 months post lumbar spine surgery.”
In relation to causation, Dr Dias stated:
“In my opinion, there remains a direct causal relationship between Mr Khoury's current conditions affecting his neck, lumbar spine and shoulders and the subject incident of 13th July 2016. ... Mr Khoury does have radiological evidence of pre-existing degenerative change in his neck, lumbar spine and right shoulder region (degenerative cervical spondylosis, degenerative rotator cuff tendon pathology), however these conditions were asymptomatic prior to the subject incident of 13th July 2016.
…
With respect to Mr Khoury's lumbar spine condition, Mr Khoury sustained a consequential aggravation of previously asymptomatic degenerative lumbar spondylosis, with an associated persisting left L5 radiculopathy, secondary prolonged altered sleeping postures post cervical spine surgery in February 2019. Mr Khoury began to worsening experience lumbar spine and lower limb radicular symptoms within 2 months of cervical spine surgery due to having to wear a hard neck collar for 3 months post-surgery, limiting his mobility whilst sleeping and consequently aggravating previously asymptomatic pre-existing degenerative lumbar spine changes. Mr Khoury had been asymptomatic in his lumbar spine region prior to early 2019. Mr Khoury was eventually diagnosed with having sustained L4/5 and L5/S1 disc protrusions on a background of pre-existing degenerative change following imaging studies of his lumbar spine region in June 2019. Mr Khoury underwent decompressive lumbar spine surgery at the L4/5 and L5/S1 levels, on 6th July 2020. He continues to suffer with lower back pain and left lower limb radicular symptoms at 34 months post lumbar spine surgery.
Dr Dias’ supplementary report dated 30 October 2023 states, in relation to the causal relationship between the light duties performed by the applicant and his back condition:
“I note, in your Letter of Instructions, dated 30th October 2023, that Mr Khoury was placed on light duties by his employer, Roosters Traffic Control Pty Ltd, in 2017, which involved performing warehouse filing duties. This involved sitting on a milk crate, for between four to eight hours per day, four days per week, and separate files, into separate piles on the floor. Mr Khoury’s knees would often be higher than his bottom, whilst sitting on the aforementioned milk crate, and would have repetitively bend and twist his lower back, as well as move boxes containing the documents.
Mr Khoury began to develop symptoms of lower back pain, stiffness and discomfort, whilst performing filing duties, for his employer in suboptimal ergonomic conditions. His symptoms of lower back pain subsequently plateaued and did not worsen, until after undergoing surgery in his cervical spine, and I detailed the development of Mr Khoury’s worsening symptoms of lower back pain after undergoing cervical spine surgery in February 2019, in my report, dated 11th April 2023.
In my opinion, based on the new evidence provided to me, there is a causal relationship, between Mr Khoury’s aggravated condition of degenerative lumbar spondylosis, and the filing duties performed in 2017, for his employer, Roosters Traffic Control Pty Ltd. His lower back condition was further aggravated following altered sleeping postures after his significant cervical spine surgical procedure in February 2019. Mr Khoury’s symptoms of lower back pain, were present from 2017, but were not severe enough for Mr Khoury to seek medical attention, until his symptomatology in his lumbar spine region worsened following cervical spine surgical intervention in February 2019 as detailed in my report dated 11th April 2023.”
Dr Dias disagreed with the opinion of Dr Bentivoglio in relation to the causation of the applicant’s lumbar spine condition and considered that Dr Bentivoglio did not take an adequate history regarding the development of the lumbar spine condition.
Dr John Bentivoglio
The respondent relies on reports of orthopaedic surgeon Dr John Bentivoglio dated 3 July 2023,[45] 22 August 2023[46] and 15 March 2024.[47]
[45] Reply pages 52-66.
[46] Reply pages 67-69.
[47] Reply pages 70-74.
In his 3 July 2023 report, Dr Bentivoglio records under the heading “History of injury – back”:
“He advised me he had not had a problem with his back prior to the 13 July 2016 incident.”
In relation to whether the applicant suffered a consequential aggravation of previously asymptomatic degenerative lumbar spondylosis secondary to prolonged altered sleeping postures, Dr Bentivoglio states:
“In the AMA Guides for the Evaluation of Disease and Injury Causation on page 215, in relation to sleep disturbance, it specifically states that there is insufficient evidence to support sleep disorders as a risk factor for low back pain. I feel it is an inappropriate suggestion by his solicitor IME to state that sleep disturbance has caused a consequential injury to his back noting the statement by AMA Guides on Disease and Injury Causation.”
In his report dated 22 August 2023, Dr Bentivoglio states that he strongly disagrees with the assessment that the applicant “developed back pain due to altered sleeping patterns following his cervical spine surgery” and considers that “a fanciful suggestion”.
Dr Bentivoglio states in his initial report dated 3 July 2023 that the applicant had an aggravation of pre-existing degenerative changes present in his lumbar spine, however in his supplementary report dated 22 August 2023, Dr Bentivoglio states that it would appear that the applicant did not injure his back in the incident on 13 July 2016 and he would consider “any symptoms he may be experiencing in his lumbar spine as purely constitutional in origin.”
In his report dated 15 March 2024, Dr Bentivoglio notes that the applicant complained to his GP of back pain in the past and his complaints are purely in relation to constitutional changes. In addition, Dr Bentivoglio considered that it was not logical to attribute the applicant’s back complaint to his short-term light duties. Dr Bentivoglio states:
“My understanding is that this gentleman had lost a significant period of time off work and last effectively worked in late 2016. It would only appear that he did the restricted duties at work for a short period of time. It is not reasonable to consider doing those restricted light duties could possibly cause a significant back problem. Even allowing him to do some minor twisting of his back remaining seated for periods of time, it is not logical to attribute his back complaint to that short-term employment that he had”.
SUBMISSIONS
Applicant’s submissions
The applicant made oral submissions at the arbitration hearing.
In summary, the applicant’s submissions were that:
(a) The relevant test for whether or not the consequential condition resulted from the index injury is whether the index injury had a material contribution to the resulting lumbar impairment: Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
(b) The applicant’s case is brought on two bases: firstly, the performance of light duties after the index accident required the applicant to do activities which aggravated his back; and secondly, following the cervical spine surgery, the applicant was required to wear a hard collar which adversely affected the applicant’s sleeping habits and he developed back complaints as a result.
(c) The applicant’s evidence regarding his light duties is unchallenged and there is no evidence from the applicant’s manager to contradict it. The factual underpinning of the light duties is made out.
(d) The GP notes record poor posture at work due to the need to bend and carry heavy boxes. The Injury Treatment emails refer to bending and lifting boxes and working on ground level.
(e) Dr Bentivoglio states the light duties were not sufficiently long enough to have given rise to any back complaint, based on the applicant ceasing work in late 2016. However, this is factually incorrect as the applicant’s evidence is that after the right shoulder operation in October 2016, he continued to perform the warehouse duties and that is consistent with the evidence of the rehabilitation providers whose reports cover the period from May 2017 to August 2017. Therefore, the factual underpinning of Dr Bentivoglio’s report is incorrect and the opinion of Dr Dias regarding the light duties is to be preferred.
(f) In relation to sleeping, as a result of the cervical spine surgery in February 2019, the applicant was required to wear a hard collar and sleep on a specific pillow. He developed severe back pain.
(g) In the reports of Dr Abraszko there is a clear reference on 30 May 2019 to significant low back pain and she ordered an MRI.
(h) Prior complaints of back pain in the GP clinical notes did not prevent the applicant from working or generate the need for an MRI or surgery.
(i) Dr Bentivoglio relies on the American Medical Association Guides (AMA Guides) as the source for his opinion in saying sleep does not cause back injury, however the applicant’s case is that because of the hard collar and the effect on sleeping posture, there were back problems.
(j) There is a contemporaneous link between the neck surgery and the onset of back complaints in April or May 2019.
Respondent’s submissions
Written submissions were filed by the respondent on 15 May 2024.
In summary, the respondent’s submissions were that:
(a) The contemporaneous records of the applicant’s treating GP do not support that the applicant suffered lumbar spine pain due to either asserted mechanism of ‘injury’.
(b) The applicant’s statements dated 13 April 2018 and 13 April 2022 make no reference to back pain due to light duties in 2017 or poor posture while sleeping in 2019.
(c) The GP clinical notes record no complaint of back pain between the date of injury and August 2017 (the period of light duties), contrary to the applicant’s assertion that he reported back pain in July 2017.
(d) The GP records of 24 July 2017 refers to poor posture but that complaint was made in reference to issues with the applicant’s hand.
(e) The applicant commenced a work trial in March 2018. The inference should be drawn this was with another employer. The applicant has not addressed this history in his evidence.
(f) The applicant attended his GP on 13 March 2018 with a complaint of back pain which is the first recorded complaint of back pain since the injury to his right shoulder on 13 July 2016.
(g) Dr Abraszko’s reports of 20 July 2017 and 27 July 2017 do not record lumbar spine symptoms. This contradicts the applicant’s evidence that he experienced a level of back pain due to sitting on a milk crate, that he reported it to the respondent and had been changed to different duties.
(h) Dr Bentivoglio noted the applicant told him he had not had a problem with his back prior to the incident on 13 July 2016, which is false as he had consulted his GP on 8 January 2013 and 6 May 2013 for back pain and was prescribed Panadeine Forte and Endone. The applicant consulted the GP again for low back pain on 20 April 2016.
(i) Dr Abraszko did not express any opinion to support a causal relationship between the use of a hard collar or pillow when sleeping and the aggravation of the pathology.
(j) Dr Dias did not provide any explanation for the stated mechanism of injury regarding the altered sleeping patterns or how lying with poor posture would have led to aggravation of pathology in the lumbar spine.
(k) Dr Bentivoglio noted the applicant had been prescribed significant pain relieving medication since 2004 and complained to his GP of lumbar spine pain in 2013 at which point a CT bone scan revealed degenerative changes in the lumbar spine and facet joints.
(l) Dr Bentivoglio rejected the opinion that aggravation of degenerative changes in the lumbar spine was due to altered sleeping patterns as fanciful.
(m) Dr Dias’ opinion should not be accepted as he has not set out a reasoned explanation for his opinion that the postural changes reported by the applicant caused a permanent aggravation of the lumbar spine pathology and he has also failed to address the GP records in finding the applicant was asymptomatic prior to 13 July 2016 and the history of onset of back pain after the applicant commenced a work trial in 2018.
Applicant’s submissions in reply
Written submissions in reply were filed by the applicant on 20 May 2024.
In summary, the applicant’s submissions in reply were that:
(a) The applicant’s statements of 13 April 2018 and 13 April 2022 were prepared in conjunction with earlier proceedings in relation to proposed neck surgery and proposed left shoulder surgery.
(b) Clinical records should not be used to attack credit. The absence of back complaints in the clinical notes needs to be weighed against the applicant’s evidence that he reported back pain to his supervisor at the time he was performing the warehouse duties.
(c) The applicant has not had an opportunity to respond to any allegation of giving a false history.
(d) Dr Abraszko’s report of 27 February 2020 does provide an expression of opinion supportive of the causal link between the post-operative management of the cervical spine and the applicant’s back pain.
(e) Dr Dias provides a discernible reasoning path making the causal link between the sleeping posture and lumbar spine symptoms.
FINDINGS AND REASONS
The respondent accepts that the applicant suffered injury on 13 July 2016 to his cervical spine and right shoulder and a consequential condition to his left shoulder. However, there remains a dispute as to whether he sustained a consequential condition at his lumbar spine as a result of the accepted injuries.
It is not necessary for the applicant to establish that a consequential condition is itself an “injury” as defined in s 4 of the 1987 Act. In Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon), Roche DP stated at [45]:
“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.”
Roche DP continued at [46]-[47]:
“The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).
The Court of Appeal considered the meaning of the expression ‘results from’ in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (‘Kooragang’) where Kirby P (as his Honour then was) said at 463-4;
‘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 common sense 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...is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.’”
In addition, a finding of a consequential condition is not necessarily dependent on diagnosis: Arquero v Shannons Anti Corrosion Engineers [2019] NSWWCCPD 3. In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23, Snell DP stated, referring to Moon and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
Therefore, based on the evidence, I must be satisfied that the applicant’s lumbar spine condition has resulted from his accepted injuries, using a commonsense evaluation of the causal chain.
The applicant bears the onus of proof.
Whilst identification of specific pathology is not required, I note the applicant’s lumbar spine condition was described by Dr Abraszko, with reference to MRI results as “right-sided L4-L5 and L5-S1 lateral recess compromise and compression of the right L5 and S1 nerve roots”.[48] Dr Dias described the condition as “aggravation of previously asymptomatic degenerative lumbar spondylosis, with an associated persisting left L5 radiculopathy”.[49] Dr Bentivoglio stated in his initial report dated 3 July 2023 that the applicant had an aggravation of pre-existing degenerative changes present in his lumbar spine,[50] however in his supplementary report dated 22 August 2023 he stated that “any symptoms [the applicant] may be experiencing in his lumbar spine are purely constitutional in origin.”[51]
[48] Application pages 199-200.
[49] Application page 149.
[50] Reply page 61.
[51] Reply page 68.
It is common ground that the applicant underwent lumbar spine surgery on 6 July 2020 and that surgery was approved and paid for by the insurer.
The applicant has put forward two bases on which he submits the injury on 13 July 2016 caused the consequential lumbar spine condition:
i) the performance of light duties between 13 July 2016 and 1 August 2017, and/or
ii) altered sleep patterns and wearing a hard cervical collar following cervical surgery in February 2019.
The applicant’s evidence set out in his statement dated 20 November 2023, is that he performed light duties sorting and filing documents both before and after his first right shoulder surgery in October 2016, requiring him to sit on a milk crate and repetitively bend and twist as well as carrying and dragging heavy document boxes. The applicant’s evidence is that after he complained to his manager of pain in his low back he was moved to a desk and chair to perform the work. The applicant states that he reported the pain to his general practitioner on about 24 July 2017.
The respondent has submitted that the applicant did not mention back pain, either due to light duties or poor posture while sleeping, in his statements dated 13 April 2018 and 13 April 2022 and that there is no record of back pain being reported to the GP in July 2017 or during the period of light duties.
Noting the history of proceedings in this matter, I accept the applicant’s submission regarding his earlier statements, in that they were prepared in relation to proposed neck surgery and proposed left shoulder surgery. I draw no adverse inference from the fact that the statements dated 13 April 2018 and 13 April 2022 do not refer to lumbar spine pain and I note the applicant’s statement dated 13 April 2018 does refer to the light duties undertaken before his first right shoulder surgery.
In relation to the activities the applicant was required to undertake during the period of light duties, I note the Injury Treatment emails that are in evidence. The emails dated 3 August 2017 and 7 August 2017 note the applicant was required to bend and lift boxes located on the ground and it was recommended that the applicant perform the duties at a seated or standing workstation to reduce aggravation of neck and shoulder symptoms.
Whilst the treatment emails refer to aggravation of neck and shoulder symptoms, rather than back pain, I consider the emails provide corroboration of the applicant’s version of the type of duties he undertook while he was engaged in light duties from July 2016 to August 2017.
In relation to complaints of back pain made to the GP, I note there were four reports of back pain prior to the work incident, in January, May and September 2013 and again on 20 April 2016.
The bone scan dated 30 January 2013 found, in relation to the lumbar spine, “No active facet joint or disco-vertebral joint arthritis in lumbar spine. No sacro-ilitis, hip joint arthritis or left ischial bursitis.” It therefore appears that as of 2013, the applicant did not have arthritis at his lumbar spine or facet joints.
Following the work incident, the GP recorded on 24 July 2017 “poor posture at work due to need to bend and carry heavy boxes…kicking them and dragging”.
Back pain is then recorded in the GP notes on 13 March 2018, 29 March 2018 and 18 September 2018, prior to the cervical spine surgery in February 2019.
Whilst it is correct that the GP record of 24 July 2017 does not refer to back pain, it does record poor posture and the types of activities that the applicant was undertaking at the time. I consider this supports the applicant’s account of the activities he undertook whilst performing light duties.
The respondent has made submissions regarding the prescription of Panadeine Forte and Endone in 2013. The GP clinical notes record that the applicant has been regularly prescribed pain medications including Panadeine Forte and Endone since before the first complaint of back pain recorded in the GP clinical notes in January 2013. However, it is not clear from the GP clinical notes what condition or conditions those medications were prescribed to treat: that is, whether they were prescribed for back pain or for another condition such as osteoarthritis which is noted in the GP clinical records.
In relation to the proposed work trial, the respondent submits that this has not been addressed by the applicant. I note the reference in the GP clinical records to the applicant commencing a work trial in March 2018, however there is no information as to whether the work trial went ahead, how long the trial lasted or what type of work was involved. It is not clear whether the second reference in the GP notes on 20 July 2018[52] to “Trial contact psychologist failed” refers to a failure of the work trial or something else entirely. Given the absence of evidence regarding the proposed work trial in March 2018, I have had no regard to it and any impact it may or may not have had on the applicant.
[52] Application page 642.
In relation to the qualified evidence, Dr Dias considered in his report dated 11 April 2023, that although the applicant had radiological evidence of pre-existing degenerative change in his lumbar spine, the condition was asymptomatic prior to 13 July 2016. In Dr Dias’ report dated 30 October 2023, he recorded the history of the applicant’s light duties activities, noting the applicant sat on a milk crate, repetitively bending and twisting, and considered that there was a causal relationship between the aggravated condition of degenerative lumbar spondylosis, and the filing duties performed in 2017, which was then further aggravated following altered sleeping postures.
Dr Bentivoglio recorded in his report dated 3 July 2023 that the applicant reported he had not had a problem with his back prior to 13 July 2016. In his report dated 15 March 2024, Dr Bentivoglio notes that the applicant complained to his GP of back pain in the past and provides his opinion that the applicant’s back complaints are purely in relation to constitutional changes and it was not logical to attribute the applicant’s back complaint to his short-term light duties. Dr Bentivoglio does not provide a time period for the light duties but states the applicant “last effectively worked in late 2016”.[53]
[53] Reply page 73.
The respondent submits that Dr Dias failed to consider the GP records of prior back pain and the applicant gave a false history to Dr Bentivoglio that he had not had prior problems with his back.
I consider that Dr Dias’ failure to consider the GP records of prior back pain, in stating that the applicant’s lumbar spine was asymptomatic before 13 July 2016, detracts somewhat from the strength of his finding regarding aggravation due to the light duties, however as noted above, there were only four reports made to the GP of back pain prior to July 2016, three in 2013 and one in April 2016.
I accept the applicant’s submission that the applicant has not had an opportunity to respond to any allegation of giving a false history to Dr Bentivoglio. In relation to Dr Bentivoglio’s conclusion that it is not reasonable to consider the light duties could possibly cause a significant back problem, this appears to be based on an erroneous assumption that the applicant’s light duties ceased in 2016, when in fact they continued until approximately July – August 2017. I consider this error detracts from the strength of Dr Bentivoglio’s conclusion regarding causation.
Whilst I acknowledge that Dr Dias did not mention the GP records of earlier back pain, on balance, I prefer the opinion of Dr Dias that there is a causal relationship between the applicant’s aggravated condition of degenerative lumbar spondylosis, and the light duties performed, to Dr Bentivoglio’s opinion that it was not logical to attribute the applicant’s back complaint to his short-term light duties in 2017, as Dr Bentivoglio did not consider the correct period of light duties, while Dr Dias has set out the details of the activities performed by the applicant and the causal relationship between the filing duties performed and the aggravation of his lumbar spine condition.
I consider the Injury Treatment emails support the applicant’s evidence concerning the activities he performed during the period of light duties from July 2016 to August 2017. The Injury Treatment emails and the GP records also support the applicant’s evidence that the light duties resulted in poor posture.
It is clear from the clinical notes that the applicant had previously complained to his GP about back pain on three occasions in 2013 and once on 20 April 2016. There are no GP records of back pain between 2014 and April 2016 and the next occasion that the GP specifically records back pain is 13 March 2018, which was about seven months after the period of light duties and prior to the cervical spine surgery in February 2019. References to back pain are then consistently recorded in the GP notes from March 2018 onwards. I do not consider the medication records support the view that the applicant’s back pain prior to the work incident on 13 July 2016 was so severe that opioid medication was needed, as it is unclear what conditions those medications were prescribed for. In addition, as submitted by the applicant, any pre-accident back pain did not prevent the applicant from working or necessitate surgery.
Having regard to all the evidence regarding the period of light duties, the recorded reports of back pain from March 2018 onwards, the qualified medical opinions and a commonsense evaluation of the causal chain, I am satisfied on the balance of probabilities that the applicant’s condition at his lumbar spine arose due to the performance of light duties and is a consequence of the accepted work injury he sustained to his right shoulder on 13 July 2016.
Whilst I have found a causal connection between the work injury to the right shoulder and the consequential lumbar spine condition, I have also considered the applicant’s second basis on which he submits the injury on 13 July 2016 caused the consequential lumbar spine condition, which is the wearing of a hard cervical collar and altered sleep posture following cervical surgery in February 2019.
The GP consultation records from 27 February 2019, 7 March 2019 and 12 March 2019 record the applicant was wearing a neck brace. The report of Dr Abraszko dated 30 May 2019 makes reference to the wearing of a neck brace and a subsequent report of 18 July 2019 also recommends the wearing of a “postural neck brace”.
Back pain is noted in the GP consultation records dated 5 April 2019, 8 May 2019, 11 May 2019, 21 August 2019 and 10 March 2020. In addition, Dr Abraszko records back pain in her report dated 30 May 2019, at which point she recommended an MRI of the lumbar spine.
Dr Abraszko recorded “severe” back pain on 18 July 2019 and 5 September 2019 and noted on 12 December 2019 that the applicant’s back pain was getting worse.
Dr Abraszko’s report dated 27 February 2020 states:[54]
“After the cervical spine surgery when he was sleeping in a hard collar due to medical requirement after his surgery, he was having a pillow which put his body in uncomfortable position and aggravated his lower back pain. Since that time he has a constant back pain radiating down to his right leg. I recommended him right L5-S1 epidural injection. We are asking insurance company to recognise his back pain as being aggravated by his postoperative management of his cervical spine.”
[54] Application pages 195-196.
The respondent submits that Dr Abraszko did not express any opinion to support a causal relationship between the use of a hard collar or pillow when sleeping and the aggravation of the pathology.
I do not find that the evidence supports this submission. As set out above, Dr Abraszko recorded that the hard collar and pillow put the applicant’s body in an uncomfortable sleeping position and aggravated his lower back pain. In stating, “We are asking insurance company to recognise his back pain as being aggravated by his postoperative management of his cervical spine”, I consider this statement is supportive of the proposition that the wearing of the hard collar and sleeping position aggravated the applicant’s lower back pain, that is, that there is a causal connection between the management of the cervical spine injury and the development of the lumbar spine condition.
The respondent also submits that Dr Dias did not provide any explanation for how lying with poor posture would have led to aggravation of pathology in the lumbar spine.
I disagree with this submission as I find that Dr Dias has set out his path of reasoning as to how he reached his opinion regarding causation. Dr Dias stated in his report dated 11 April 2023 that the applicant:
“…began to worsening experience lumbar spine and lower limb radicular symptoms within 2 months of cervical spine surgery due to having to wear a hard neck collar for 3 months post-surgery, limiting his mobility whilst sleeping and consequently aggravating previously asymptomatic pre-existing degenerative lumbar spine changes”.[55]
[55] Application page 154.
In his supplementary report dated 30 October 2023, Dr Dias stated that following the period of light duties, the applicant’s lower back condition “was further aggravated following altered sleeping postures after his significant cervical spine surgical procedure in February 2019”.[56]
[56] Application page 826.
I consider that Dr Dias has set out his path of reasoning that the wearing of a hard collar limited that applicant’s mobility while sleeping and altered his sleeping posture and this aggravated his lumbar spine condition.
Dr Bentivoglio strongly disagreed with the proposition that the applicant developed back pain due to altered sleeping patterns following his cervical spine surgery, describing that as “a fanciful suggestion”. Dr Bentivoglio referred to the AMA Guides for the Evaluation of Disease and Injury Causation and stated that page 215 of those Guides state, in relation to sleep disturbance, that “there is insufficient evidence to support sleep disorders as a risk factor for low back pain”.[57]
[57] Reply page 62.
The page of the AMA Guides referred to by Dr Bentivoglio is not in evidence and I must therefore rely on Dr Bentivoglio’s summary of it, and in particular his use of the term “sleep disorders”.
The applicant submits their case is that the consequential condition is due to the wearing of the hard collar and sleeping posture, not due to a sleep disorder.
I agree with the applicant’s submission. The applicant’s case, supported by Dr Abraszko, is that sleeping with a hard collar and a particular pillow following cervical surgery resulted in an uncomfortable sleeping position for the applicant, causing aggravation of the applicant’s lower back pain. Dr Dias supports this causation finding. I do not consider that Dr Bentivoglio’s comments regarding “sleep disturbance” and “sleep disorders” actually address this proposition as it does not appear from his report that Dr Dias has turned his mind to whether sleeping in an altered position while wearing a hard collar could cause an aggravation of back pain.
Having regard to the evidence and a commonsense evaluation of the causal chain, and noting the report of Dr Abraszko that supports the causal chain, I am satisfied on the balance of probabilities that the applicant’s condition at his lumbar spine was caused by the wearing of a hard cervical collar and altered sleep posture following cervical surgery. I find that the applicant’s lumbar spine condition is a consequence of the accepted work injury he sustained to his cervical spine.
On both bases advanced by the applicant, I am satisfied that the applicant sustained a consequential condition at the lumbar spine as a result of his accepted work injuries sustained on 13 July 2016.
Accordingly, it is appropriate that there be a referral to a Medical Assessor for assessment of the degree of permanent impairment at the applicant’s right upper extremity (shoulder), left upper extremity (shoulder), cervical spine, lumbar spine and associated scarring.
SUMMARY
The applicant sustained a consequential condition at his lumbar spine as a result of the accepted injuries to his right shoulder and cervical spine sustained on 13 July 2016.
Accordingly, I order that the matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment at the applicant’s right upper extremity (right shoulder), left upper extremity (left shoulder), cervical spine, lumbar spine and TEMSKI / scarring.
The order is set out in the Certificate of Determination.
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