Kim v C M Club Pty Ltd
[2023] NSWPIC 330
•7 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Kim v C M Club Pty Ltd [2023] NSWPIC 330 |
| APPLICANT: | Haa Neul Kim |
| RESPONDENT: | C M Club Pty Limited |
| Member: | Christopher Wood |
| DATE OF DECISION: | 7 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; frank accident involving multiple body parts informing payment for whole person impairment pursuant to section 66; whether the applicant sustained an injury to his cervical spine in addition to accepted body parts; absence of contemporaneous records evidencing injury to cervical spine; Held – applicant was a witness of truth and absence of complaint could be contributed to language barriers and treatment for more serious, immediate injuries; the applicant could point to demonstrable physical change and injury was consistent with a fall of the type suffered by the applicant; award for applicant; to be remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess whole person impairment by reference to all body parts pleaded in application for review of decision. |
| determinations made: | The Commission determines: 1. The applicant suffered an injury to his cervical spine during the course of his employment with the respondent on 21 July 2021. 2. The Application for Review of Decision (ARD) is remitted to the President for referral to the Medical Assessor for assessment of the applicant’s whole person impairment by reference to all body parts referred to in the ARD. |
STATEMENT OF REASONS
BACKGROUND
The applicant is a 33-year-old male who commenced employment with C M Club Pty Limited (the respondent) on 1 June 2020 as a painter. He is of Korean birth and Korean is his first language and language of choice.
On 21 July 2020, while working at a residential home at Mosman, the applicant fell some five metres from a ladder on to concrete suffering various injuries, some of which were severe. He was conveyed to Royal North Shore Hospital where he was treated for injuries to his left hip and right arm amongst other body parts. X-rays and CT scans disclosed a fracture to his left hip and an un-displaced fracture of the right shoulder. He underwent surgery followed by several weeks rehabilitation until early September 2020.
Since that time despite some attempts to return to work the applicant has been unable to return to employment. The applicant’s allegations include neck pain since the time of his accident. The respondent has accepted liability to make payments of workers compensation to the applicant related to most of his injuries but disputes that he suffered an injury to his cervical spine resulting in neck pain (as a consequence of the accident on 21 July 2020).
The applicant brings a claim for whole person impairment benefits by reference to injuries to the left hip, lower back, right arm and cervical spine.
ISSUES FOR DETERMINATION
The parties are agreed the only matter for determination by the Personal Injury Commission (the Commission) before referral to a medical assessor to assess whole person impairment is whether the applicant has suffered an injury to the cervical spine for the purposes of s 4a of the Workers Compensation Act 1987 (the Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The application for review of decision (ARD) was listed for preliminary conference on 13 April 2023; a Korean interpreter was present.
I enquired of the parties as to the prospects for resolution of the dispute.
It was agreed that the only matter to be determined before referral to the medical assessor was whether or not the applicant had suffered an injury to the cervical spine in his fall for the purposes of s 4A of the Act.
The parties also agreed that the matter did not need to proceed to a formal conciliation/arbitration and it would be appropriate for the Commission to resolve the matter on the papers following submissions.
A timetable for submissions was put in place and the written submissions for each party are on the Commission’s file. The applicant has chosen to make submission in reply to those of the respondent.
Given the course of the matter at the preliminary conference 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) ARD and attached documents, and
(b) Reply and attached documents.
For completeness I note neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant has provided a statement outlining the circumstances of his accident, the sequelae of the fall and the treatment he has received.
He indicates that having been born in South Korea he did an apprenticeship after leaving school and after qualifying as a motor mechanic, worked in that trade for a number of different employers in South Korea.
He travelled to Australia in April 2018 and worked as a process worker before moving back to South Korea and then returning to Australia in 2019. After a further stint as a process worker and a motor mechanic, he commenced employment with the respondent in June 2020.
The applicant says that he had not suffered any previous injuries nor had any pre-existing medical conditions that effected his neck, lower back, shoulders, elbows or hips prior to his workplace accident. He says he was fit and healthy.
The applicant’s work with the respondent was unremarkable, consistent with his role and he outlines the circumstances of his accident which was clearly a traumatic one. He fell approximately five metres from a ladder to concrete below. He says he cannot recall if he lost consciousness at that time but he felt severe pain and discomfort in particular in his right shoulder and arm and left hip. He said at that time he also felt pain and discomfort in his neck and lower back but it was not as severe as the other body parts.
He was conveyed by ambulance to Royal North Shore Hospital where various diagnostic tests were carried out including CT scan and X-ray. He underwent emergency surgery under Dr Moopanar, an orthopaedic surgeon.
Between the date of the accident and September 2020, when he was released from the Alwyn Rehabilitation Hospital, he has had further X-rays and CT scans.
The applicant continued regular consultations with Dr Moopanar.
The applicant’s general practitioner at the time was Dr Benjamin Howell who he saw until August 2021. The applicant’s attendances upon Dr Howell included an episode of chest pain which required him to wear a Holter monitor and ultimately he came to counselling to deal with his symptoms of anxiety and panic.
In September 2021 the applicant changed his general practitioner to Dr Hajoen Lee, a Korean speaking doctor. The applicant also continued to undergo physiotherapy and consultations with Ms Rose Kwon, a psychologist.
The applicant sets out details of his ongoing treatment for his right shoulder and hip injuries. He obtained a second opinion from a specialist, Dr David Duckworth, in relation to his ongoing right shoulder difficulties.
After consulting with Dr Duckworth, the applicant elected not to undergo further surgery to his shoulder. He has ongoing left hip discomfort and is seeing Dr Moopanar in relation to that rehabilitation; physiotherapy has been the preferred treatment.
In respect of his alleged cervical spine injury the applicant says that he told Dr Howell about neck pain and discomfort, but the focus of his treatment has always been on those body parts to which he suffered injury outlined above and which necessitated immediate emergency treatment at hospital.
The applicant says that it was not until he spoke with Dr Lee, a Korean speaker, that he was able to properly convey the fact that he suffered from ongoing neck pain leading to him being referred to Rapid Therapy for physiotherapy treatment. He says that he has always suffered from pain and discomfort in his neck and lower back after the fall.
Applicant’s medical evidence
Ambulance records
The material accompanying the ARD includes NSW Ambulance Service records.
The records detail the circumstances encountered by the ambulance officers and confirm the fact of the applicant falling approximately five metres onto concrete pavers. A bystander was “maintaining manual spine immobilisation”. The notes go on to state the applicant “denies C-spine tenderness” and further record “pain Left mid thoracic back exhibited by movement, tender on palpitation”.[1]
[1] ARD page 83.
Royal North Shore Hospital notes
The Royal North Shore Hospital notes in support of the ARD are largely concerned with diagnostic procedures carried out in relation to the applicant’s frank injuries to his elbow and hip. I note the hospital discharge letter of 27 July 2020.[2] The notes record progress in relation to the primary injuries including a right rotator cuff repair requiring non operative management at that time. Reference is also made to “pulmonary contusions and muscular strain of right traverse silos abdominal muscles”. No other injuries were noted.
[2] ARD page 94.
The Royal North Shore Hospital notes include entries from Dr Moopanar who apart from confirming the fractures to the hip and right shoulder, also diagnosed “medial subluxation of the biceps tendon” (presumably to the righthand side) and amongst other things low grade muscular injuries of anterior and posterior deltoid.[3]
[3] ARD page 88.
Dr Moopanar
Dr Moopanar has not provided a report to the applicant directly addressing the issue of a cervical spine injury. There are several reports from Dr Moopanar in evidence.
A report dated 27 November 2020[4] is directed to Dr Benjamin Howell, the applicant’s first general practitioner. He confirms the fact of a significant work injury. In a later report dated 22 March 2022 to Dr Howell, Dr Moopanar repeats the fact of the applicant having a significant injury and says that his main concern was the injury to the right shoulder and in particular biceps pathology.[5]
[4] ARD page 493.
[5] ARD page 640.
He notes that surgery was indicated but he would be happy to delay this as the applicant was seeing employment at that time.
Dr Moopanar’s report of 9 May 2022[6] to Dr Powell initially comments on the applicant’s hip. He goes on to comment to Dr Howell that the applicant “still complains of pain in his right shoulder, but I have reassured him that as the hip heals I feel the shoulder may in itself settle down”.
[6] ARD page 720.
He records that the applicant “was doing very well from what was a significant injury to his shoulder and hip and he is making slow and steady progress”.
The final report of Dr Moopanar in evidence is dated 1 August 2022 and is again directed to Dr Howell. That report details that Dr Moopanar was of the view that the applicant was recovering quite well from the hip and shoulder injuries. Dr Moopanar says that his main concern at that time was for “subacromial bursitis clinically”. He notes that the applicant was not apprehensive anymore but his biceps pathology remained negative.[7]
[7] ARD page 816.
Dr Howell
Dr Howell was the applicant’s first treating general practitioner.
The ARD includes a referral letter from Dr Howell to Dr Mark Haber dated 12 August 2020. That letter set out the various injuries and noted at that time that the applicant was still in hospital with significant pain in his right shoulder.[8] Dr Haber was to advise on management of right shoulder symptoms and the rehabilitation process.
[8] ARD page 124.
Dr Howell also referred the applicant to Dr David Duckworth for a second opinion. His letter of referral is dated 19 January 2021. On referring the applicant to Dr Duckworth, Dr Howell noted the applicant had sustained significant injuries in the workplace and sought a second opinion as to whether surgery indicated by Dr Moopanar was appropriate. It addresses Dr Moopanar identifying a right shoulder SLAPTS tear and the need for surgery. Dr Howell noted that the applicant would like to defer such surgery until after a work trial with Catholic Cemeteries.
Dr Hajoen Lee
Dr Hajoen Lee took over from Dr Howell as the applicant’s main treating general practitioner; he speaks Korean. Numerous reports and medical certificates issued by Dr Lee are in evidence. Some of the reports had been issued under his surgery name
“J Medical and Cosmetic Centre”.In a report of 10 October 2021 to the applicant’s solicitors, Dr Lee sets out the history taken by him and the diagnosis consistent with the treatments given by Royal North Shore Hospital.[9] Under a heading “Causation” Dr Lee records the applicant as having mildly limited ROMs[10] of neck. In commenting on the applicant’s work capacity at that time, he said he would be capable of work involving a steady neck position of up to 10 minutes. The applicant was evidently showing signs of psychological trauma at that time.
[9] ARD page 693.
[10] Presumably “Range of Movement”.
Dr Lee referred the applicant for physiotherapy at the “Rapid Therapy” practice – this is the practice of Mr Josh Han. His initial letter of referral to that practice is dated 13 September 2021.[11] Dr Lee records his assessments as follows:
“Injuries, fracture of neck of left femur/right radial head, right greater tuberosities. Tear of right supraspinatus and subscapularis, right shoulder subacromial/subdeltoid bursitis”.
[11] ARD page 702.
Dr Lee provided a further report dated 9 December 2022 to the applicant’s solicitors. That report responds to some questions put to him by the solicitors.
Dealing with whether or not the applicant had reached maximum medical improvement in relation to his right shoulder injury, Dr Lee responds in the affirmative.
The report then goes on to discuss under the heading “Causation” amongst other things, the issue of whether or not the applicant’s symptoms and his injury to the cervical spine were related to the accident.
Dr Lee comments as follows:
“It is not unlikely that he has a certain degree of cervical spinal injury from the accident. High speed direct blunt trauma to his shoulder and head would cause significant trauma to his cervical spine which connects the two parts.
…(b)He fell while working for employer. His employment is the direct cause of the cervical spine injury and responsible for subsequent work incapacities and need for treatments. He did not have any pre-existing medical conditions which can be effected by the accident.”
Dr Wil II Song Lee
There are also medical certificates of incapacity in evidence from Dr Wil Il Song Lee who saw the applicant it seems briefly from May 2021.[12]
[12] ARD pages 666 and 669.
Mr Josh Han – Rapid Therapy
Mr Han is the applicant’s treating physiotherapist and saw the applicant at the request of Dr Lee.
His treatment notes are on the Commission’s file.[13] The records are comprehensive and detail consistent presentation by the applicant, primarily for treatment to his right shoulder. They span the period from October 2021 until May 2022. They also record the fact of the applicant attempting to return to work on occasions. As at the time of his last consultation on 26 May 2022, the applicant was continuing to experience discomfort in his left thigh but feeling better. His right shoulder was causing him ongoing pain and discomfort and there had been no significant improvement. He was at that stage continuing to seek specialist treatment.
[13] ARD pages 723-806.
I have been to identify two direct reference to the cervical spine in Mr Han’s notes.[14] These are also referred to by the parties in their submissions.
[14] 11 October 2021 and 2 December 2021; ARD 805 and 785 respectively.
The first reference in the notes was, on the applicant’s first consultation with Mr Han. Reference is made by him to observed ranges of movement in the cervical spine.
Dr Uthun Dias
Dr Dias has seen the applicant for medico-legal purposes and has provided two reports dated 25 October 2021 and 15 August 2022.[15]
[15] ARD pages 18 and 54 respectively.
Dr Dias records the circumstances of the applicant’s injury and notes, amongst other things, the applicant suffered an injury to his cervical spine. He records the applicant as continuing to struggle with ongoing debilitating pain and discomfort including to his neck and right shoulder. He noted the most significant symptoms of pain were localised to his lower back and left hip region.
Dr Dias examined the applicant’s cervical spine which he said was normal to inspection. He did note that the applicant was tender to palpitation in the mid-line and in the right and left cervical para spinal muscular from C2 to T2 levels. There was a finding of moderate muscle guarding on palpitation. There was no evidence of muscle spasm.
Dr Dias noted a limitation of extension of the cervical spine to three quarters of the normal range as a function of pain and discomfort. He noted lateral faction of the cervical spine was limited on the right side to about one half of the normal range and on the left side by three quarters. Lateral rotation was also limited bilaterally. Dr Dias found no objective motor or sensory deficits on examination of the applicant’s right and left upper limbs. He also recorded there was no objective clinical evidence of cervical radiculopathy or objective peril nerve deficit being noted.
In expressing his diagnosis and in referring to the cervical spine, Dr Dias says that the applicant suffers from chronic non-specific cervical spine strain, stiffness and discomfort secondary to an acute musculo-ligamentous strain.
He then goes on to address the questions put to him by the applicant’s solicitors, including the relationship between the conditions found on examination and the injuries sustained. Dr Dias opines there is a direct causal relationship between the applicant’s current condition effecting his neck, right shoulder, right elbow, lumbar spine and left hip after his involvement in the accident on 21 July 2020. He goes on to say:
“In my opinion all of Mr Kim’s symptomology, disabilities and impairments in respect to his current condition effecting his neck, lower back, right shoulder, right elbow and left hip are entirely causally attributable to the workplace accident on 21 July 2020” (my emphasis)[16]
[16] ARD page 34.
Dr Dias’ second report dated 15 August 2022 is in the form of a supplementary report directly addressing further questions from the applicant’s solicitors following the respondent having obtained the opinion of Dr Todd Gothelf (see below). Dr Dias repeats his opinion that there is a direct causal relationship between the applicant’s cervical spine condition he assessed at the time of his examination in October 2021 and the accident. He notes that the applicant sustained serious traumatic orthopaedic injuries and soft tissue injuries as well. He discusses the mechanism of injury and the accident and says that it would have been sufficient to cause acute musculo-ligamentous strain to the cervical spine and lumbar spine regions. He notes that the focus of the applicant’s concerns after the accident were necessarily related to the more serious injuries to the right shoulder, right elbow and left hip. He also notes that the applicant did not have any previous injuries or known pre-existing conditions to the cervical spine and that the cervical spine symptoms have persisted since the accident.
Respondent’s medical evidence
The respondent relies on two reports of Dr Todd Gothelf as well as pointing to the lack of mention of injury to the cervical spine in the treating reports. It relies also on the ambulance records and CT report from Royal North Shore Hospital including the discharge referral.[17] I have addressed those documents in summarising the applicant’s evidence.
[17] ARD pages 82, 80 and 94 respectively.
Dr Todd Gothelf
Dr Gothelf’s first report is dated 27 December 2021. Like Dr Dias, Dr Gothelf had access to a range of material including diagnostic reports and letters from treating practitioners. He also commented upon Dr Dias’ opinion.
As to the sequalae of the applicant’s fall, Dr Gothelf’s report is consistent with other practitioners. At the time of his report, Dr Gothelf records the applicant as having physiotherapy twice a week for his left hip and right shoulder and the right elbow was said to be better. He was also receiving treatments for his lower back. Dr Gothelf considered the material sent to him at some length including the investigation reports – MRI, X-ray and CT scans.
Dr Gothelf’s examination of the applicant’s cervical spine showed his posture as normal. Unlike Dr Dias, he did not elicit any tenderness on palpitation of the neck, spinous processes or spinal muscles. He identified no visible or palpable deformity in the neck region or muscle spasm or guarding. He found movement was a fraction less than the normal range of motion of full cervical extension, deflection and rotation.
Dr Gothelf does not accept that the applicant suffered a cervical neck strain consequent upon his accident. He notes no report of cervical neck injury in the history or treatment for a cervical neck condition in the documents made available to him. He says that the applicant reports persistent cervical neck pain but the physical examination revealed no tenderness to palpitation nor was there any evidence of radiculopathy.[18] Dr Gothelf accepts injuries to the applicant’s left hip, right elbow, right shoulder and lower back. He does not consider that the applicant’s employment contributed to a cervical neck strain (injury).
[18] ARD page 51.
At the time of his initial assessment, Dr Gothelf did not consider the applicant to have reached maximum medical improvement.
Dr Gothelf’s second report is dated 18 September 2022. Again, Dr Gothelf had regard to a body of material including diagnostic reports and discharge summaries and the like. This report is largely a recitation of the previous report and notes the applicant as reporting neck pain and it being an 8 out of 10 in terms of intensity. He says the applicant told him the pain in his neck goes to the head and down the back.
Dr Gothelf again examined the applicant’s cervical spine and the outcome is in accordance with that recorded by him on his first examination.
On this occasion Dr Gothelf records reference to alleged inconsistencies in greater detail. He says that the reported pain and disability is “unexpectedly significant and persistent and continues to prevent Mr Kim from returning to daily activities and work”. He opines that the persistence of symptoms is not consistent with healing of injuries. As far as the applicant’s cervical spine is concerned, Dr Gothelf again notes no report of injury in the history or documentation made available to him. There was no indication of treatment for the cervical spine despite the applicant reporting persistent cervical neck pain.
Dr Gothelf’s opinion was unchanged in relation to any cervical spine condition being related to the workplace injury.
He goes on to note in answer to a question put to him by the respondent’s solicitors that the cervical spine symptoms are not related to the subject incident on 21 July 2020 and his opinion has not changed. He accepts the applicant has cervical neck symptoms but there is no pathology identified in relation to the injury unidentifiable cause for ongoing symptoms.[19] He notes that there is no evidence of a frank injury to the cervical spine and repeats that although that he accepts the applicant has cervical neck pain it is without an identifiable cause.[20] He does not regard on the balance of probabilities that the cervical neck symptoms have resulted from any of the accepted injuries to the left hip, right elbow, right shoulder and lumbar spine. He believes that there may be factors beyond the applicant’s physical injuries that are preventing his return to work but he had otherwise reached maximum medical improvement opining that the applicant’s whole person impairment is 9%, excluding the cervical spine.
[19] ARD page 73.
[20] ARD page 73.
SUBMISSIONS
The written submissions from both parties, primary and in reply by the applicant and from the respondent are in the papers filed with the Commission and can be accessed. I note the main aspects of each parties’ submissions below.
Applicant’s submissions
In contending that the applicant has suffered an injury to the cervical spine for the purposes of s 4a of the Act, the applicant’s counsel Mr McManamey notes that there was no dispute that on 21 July 2020 he suffered an injury to his left hip, lower back and right arm. The submissions note the severity of the applicant’s accident in which he fell from a height of five metres to concrete below. The applicant’s counsel notes that the applicant says that he suffered pain in his neck and lower back but this was as not as severe as the frank injuries to his left hip and right arm.
The applicant points to the CT scan of the applicant’s cervical spine in the Royal Shore Hospital’s investigations as signifying that the doctors who treated me considered a neck injury to be likely. The applicant points to the mechanism of injury as being explained by Dr Lee in his report of 9 December 2022, that is high speed direct blunt trauma to the shoulder and head would cause significant trauma to the neck which joins the two.
The applicant notes that the focus was on his left hip and right arm, requiring hospitalisation for four days while he underwent surgery before being discharged for rehabilitation over a one month period between 6 August 2020 and September 2020.
The applicant points to the necessity to exercise care in relation to the history taken by treating doctors, in particular the hospital in that the applicant’s language skills were not good enough to discuss his medical status.[21] The applicant had no option but to focus on the most seriously injured body parts dispute having neck pain. He says that he did inform Dr Howell of his neck pain but Dr Howell was focused on treatment to the left hip, right shoulder and elbow.
[21] The applicant cites reference in notes from Rehab Focus, rehabilitation provider, to it arranging for an interpreter to attend medical appointments; ARD page 119.
The applicant notes Dr Wil Il-Song Lee records significant abnormality for the head and neck as at 5 May 2021 being suggestive of neck pain consequent on the accident.
The applicant notes that Dr Haejon Lee recorded restrictions in the neck impacting any return to work. The applicant notes Dr Lee’s explanation for the neck pain being suffered by the applicant in his report of 14 March 2022.
The applicant relies on the records of Mr Han, his treating physiotherapist, which record on 11 October 2021 the applicant was suffering pain in his cervical spine and having a limited range of movement.
Finally the applicant draws on the opinions of Dr Dias. It quotes from Dr Dias’ report with reference his views as to the mechanism of injury being sufficient to cause and acute muscular strain to the cervical spine and lumbar spine regions and Dr Dias noting that the focus of the applicant’s clinical concerns were necessarily focused on his other injuries.
The applicant points to Dr Gothelf also finding some restriction in movement in the neck and the practitioner’s acceptance that the applicant was suffering from some cervical strain albeit unrelated to the accident. The applicant notes that Dr Gothelf did not identify any other cause and that the combined opinion of the two medico-legal experts is that there was cervical strain evident. In the absence of any other explanation, the applicant’s counsel says the cervical spine injury is due to the applicant’ fall in the course of his employment.
Respondent’s submissions
The respondent points to the need to establish a sudden or identifiable pathological change to establish an injury, relying on Castro v State Transit Authority (NSW) [2000] NSWCC12.
It also draws on the High Court decision in Military Rehabilitation and Compensation Commission v May[22] (Military Rehabilitation and Compensation Commission). The principles enunciated in that decision it says are relevant and the respondent emphasises that a physiological change is central to establishing an injury.
[22] [2016] HCA19.
The respondent suggests that the height of the applicant’s case is a (the) hypothesis that because he hit his head in the fall it resulted in a neck injury, being a soft tissue injury. The respondent says the applicant can point to no objective an identifiable pathological or physiological change occurring on 21 July 2020. The respondent notes that the applicant says that he suffered neck pain on falling to the ground but there is no record of this including the notes taken by ambulance officers and doctors at Royal North Shore Hospital. Objective testing did not reveal an injury to the cervical spine and ambulance officers expressly record that there was not any cervical spine tenderness.
The respondent notes that at no stage did the ambulance officers or Royal North Shore Hospital treating doctors indicate any difficulties in communicating with the applicant.
The respondent contrasts the opinions of Dr Dias and Dr Gothelf contending that Dr Dias has failed to explain how his opinion can stand in the light of the objective results of the CT scan report from Royal North Shore Hospital.
The respondent then points to a number of inconsistencies it says it identified between the applicant’s statement and the medical evidence. It goes on to say that it has submitted:
“…extreme caution should be exercised in accepting the applicant’s statement given that he is not a creditable witness”.
It points to authorities in supporting its submission that the applicant, not being subject to cross examination, does not preclude an adverse credit finding.[23]
[23] Halilovich v Paper Australia Pty Limited [2018] NSWWCCPD80 (Halilovich) and Donavan v Secretary Department of Education and Communities [2015] NSWWCCPD27 (Donovan).
The inconsistencies identified by the respondent include the absence of complaints of neck symptoms in Dr Howell’s reports and the fact that Dr Lee’s records disclose no complaints of neck pain, despite the applicant contending it was not until he saw that practitioner and his neck complaints were addressed by referral to physiotherapy.
The respondent draws attention to the referral letter to Rapid Therapy (to which I have referred above) in that it did not mention issues with the applicant’s neck. The first mention of neck complaints the respondent identifies is the consultation with Dr Han in December 2021. Dr Han records that pain was attributed to a “muscle release” that the applicant had performed at home (and not before July 2020).
The respondent takes issue with the applicant’s suggestion that as Dr Gothelf did not identify an alternate cause for his finding of cervical strain, that it was suggestive of an injury arising on 21 July 2020. The respondent says that this submission fails to take into account a complete reading of the doctor’s report specifically that Dr Gothelf considered the applicant’s symptoms to be inconsistent with the objective pathology and a complete reading of the two reports shows there was no objective pathology in the neck attributable to the fall and the cause of the applicant’s ongoing symptoms was inconsistent with his clinical situation.
The respondent says it would be an error of law to accept Dr Lee’s reports on behalf of the applicant because his opinion is that the applicant’s neck pain has been effected by his injuries to the right shoulder and left hip i.e.; as the applicant has not alleged a consequential injury to the cervical spine any finding in the applicant’s favour would be an error of law.
The respondent says Dr Lee’s opinion is tainted by the fact that he has recorded a history which relies upon the applicant’s version which cannot be relied on and does not refer to any objective evidence of pathology needed to establish a neck injury. The respondent notes Dr Lee only commenced treating the applicant in mid-2021 and repeats the proposition that the applicant must establish he sustained an injury by reference to an unidentifiable pathological or physiological change in the cervical spine. It says that the opinions of Dr Dias and Dr Lee are insufficient to demonstrate the pathological change required to establish such injury.
Applicant’s submissions in reply
The applicant has availed himself of the opportunity of making submission in reply to those of the respondent and points out that a physiological change is not a physical change in the body. A psychological change is a change in function. It says the applicant says an onset or change of change in symptoms can constitute a physiological change and be sufficient evidence of injury. It points to a psychological injury by way of example which the applicant says “is almost always a pure injury of function with no identifiable physical change or symptom”. The applicant’s neck injury is said to be an injury pursuant to the Act by reason of the applicant’s evidence of pain after an injurious event. The applicant cites the decision in Federal Broom Co Pt Ltd v Semlitch;[24] a change in symptoms can be sufficient evidence.
[24] [1964] ALR1031.
The applicant draws attention to Dr Dias’ diagnosis as evidence of a physiological change. The applicant addresses the respondent’s reference to the contemporaneous CT scan not showing pathology saying in respect of such procedure that there are many soft tissue injuries that will not be disclosed (on a CT scan).
The applicant’s counsel addresses the respondent’s proposition that the applicant lacks credibility as a witness. In responding to the proposition that Dr Lee’s records disclose no complaints of neck pain, that there is in fact e reference to Dr Lee recording a complaint of neck pain on 8 October 2021, the applicant says that the evidence in his statement is it was not until he consulted Dr Lee who could speak fluent Korean that his neck complaints were addressed is (therefore) not untrue.
The applicant identifies an earlier entry by Mr Han (the treating physiotherapist) than that relied upon by the respondent and to which I referred in my summary of the evidence. The respondent’s submissions suggest that the first mention of neck pain complaints to Mr Han was on 2 December 2021 however, the applicant correctly notes a record of pain being recorded on 11 October 2021 and Mr Han assessing a range of movement to the cervical spine on that day. The respondent says on this basis there are no inconsistencies in the medical records. The applicant addresses the respondent’s reference to the applicant only suffering neck pain after a “muscle release” at home. The applicant says that the assumption by the respondent that the cause of his neck was referrable to this incident rather his accident on 21 July 2020 is incorrect. The applicant notes that the entry of that history refers to pain being “aggravated” after the release. The applicant says this statement can only be consistent with neck pain being present prior to that time. It says that the inconsistencies relied upon by the respondent are incorrect; there are no inconsistencies.
The applicant rejects the respondent’s ultimate submission that the opinions of Dr Dias and Dr Lee are insufficient to show pathological change. The applicant points out that the test is whether there is physiological change in the sense of change of function. It notes that even Dr Gothelf accepted there was a change in function with the only question being whether that was a change in function as a result of the fall.
There being no other explanation being offered by any of the medical practitioners that the applicant suffered an injury to the cervical spine in his incident on 21 July 2020.
REASONS FOR DECISION
Applicant’s credit – alleged inconsistencies
There is commonality between the parties as to the applicant having suffered a range of injuries in what was undoubtedly a very traumatic workplace accident, necessitating him being admitted to hospital for surgery and a lengthy period of rehabilitation thereafter. The respondent casts doubt on the applicant’s credit and suggests if he had injured his neck it would have been recorded by the ambulance officers and the medical practitioners at Royal North Shore Hospital.
Caution is always required in weighing evidence found in the records of treating practitioners.[25] Errors or omissions do occur in note taking particularly in emergency circumstances. The applicant’s preferred method of communicating in Korean would have added to the difficulties. He had suffered severe injuries.
[25] Davis v Council of City of Wagga Wagga [2004] NSWPL34.
I agree with the applicant’s submissions that a CT scan does not of itself rule out an injury, particularly one which occurred in circumstances as traumatic of those undergone by the applicant falling some five metres.
Dealing further with the applicant’s credit, the respondent referred to what it describes as inconsistencies between the applicant’s statement and the medical evidence.[26] It then goes on to make the bold statement that extreme caution should be exercised in accepting the applicant’s statement “given that he is not a credible witness”. With respect to the respondent this something of a “leap”; inconsistencies in evidence do not of themselves bespeak a lack of credit particularly in circumstances where the alleged inconsistencies on which the respondent relies when viewed in context as I have said arise out of a traumatic accident and communication difficulties. The respondent cites decisions of this Commission in submitting that the applicant, having not being cross examined, does not preclude an adverse credit finding.[27] That may be the case however, it was also the respondent’s decision not to cross examine the applicant or otherwise put forward additional evidence which have cast further doubt on the applicant’s version of events. I note that on each occasion the applicant saw Dr Gothelf he was accompanied by an interpreter and there is nothing in Dr Gothelf’s reports to indicate that he communicated with the applicant other than through the Korean interpreter. The respondent apparently accepted the necessity for an interpreter at that time. The comprehensive history obtained by Dr Gothelf and for that matter by Dr Dias, bespeaks the applicant’s need for assistance in conveying the symptoms or physical difficulties from which he was suffering from time to time.
[26] Paragraph 19 of Submissions.
[27] Paragraph 19 Halilovic and Donovan.
The applicant has otherwise rebutted many of the “inconsistencies” for which the respondent contends and in particular as I have noted above, says that a CT scan does not exclude injury being mainly utilised to investigate bone and cartilage abnormalities.
While I accept that the absence of a recorded history of neck pain at least until May 2021 and possibly September 2021 might raise some questions for the respondent, there is essentially consistency between what the applicant says in his statement and what is independently recorded by his treating doctor, Dr Lee and Mr Han. Factoring in the communication difficulties which are not put in dispute and the initial focus by practitioners on the more severe injuries, on balance, I accept the applicant as a witness of truth. Any inconsistencies for which the respondent contends do not change that position. They fail to have regard to those matters to which I have referred.
Injury
“Injury” is defined in s 4 of the Act as follows:
“4. Definition of ‘Injury’
In this Act –
‘Injury’ –
(a) means personal injury arising out of or in the course of employment…”
As is often reported and indeed referred to albeit by different means in the submissions, personal injury is:
“…a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state… it is a sudden identifiable pathological change”[28]
[28] Roche DP Trustees of Society of St Vincent de Paul (NSW) v Maxwell James Kear as the administrator of the Estate of Anthony John Kear [2014] NSWWCCPD 47
Suddenness is not a necessarily ingredient to establish injury.[29]
[29] Military Rehabilitation and Compensation Commission.
The applicant’s statement which I have accepted as true records that he suffered pain at the time of his fall. From as early as May 2021 and certainly no later than 11 September 2021 there are reports of restriction of movement in the cervical spine including the records of Dr Hajeong Lee, Mr Han and Drs Gothelf and Dias, albeit there are varying degrees of restriction. These histories are recorded without reference to any other relevant event.
The respondent’s submissions note reference to the applicant performing a cervical spine “release” at home. I do not believe this takes the matter any further and as pointed out in the applicant’s submissions, this is consistent with there having been neck pain prior to that event.
In the absence of any other relevant history, again noting the severity of the applicant’s fall and the proximity of other injuries to his cervical spine, I accept that he has suffered an injury to that body part in the incident on 21 July 2020. The comments by Dr Lee in his report of 9 December 2022 capture essentially what I find to have occurred:
“High speed direct blunt trauma to the shoulder and head would cause significant trauma to the neck which joins the two”.
The physiological effect that occurred on 21 July 2020 may be somewhat unclear but as noted by the applicant’s counsel, the intense pain suffered by the applicant was the physiological change or disturbance of the applicant’s cervical spine.
It may well be that the cervical spine injury, soft tissue in nature only, ultimately sounds in a fairly minor or no contribution in any assessment of whole person impairment but that is a matter for the medical assessor.
I find that the applicant suffered an injury for the purposes of s 4(a) of the Act. The ARD is remitted to the President for referral to the Medical Assessor for assessment of whole person impairment by reference to all body parts pleaded. The material to be referred includes all those documents supporting the ARD and Reply currently before the Commission and these reasons for decision.
0
1
0