Kolak v Hunani Pty Ltd
[2008] NSWWCCPD 60
•19 June 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Kolak v Hunani Pty Ltd and anor [2008] NSWWCCPD 60 | ||||
| APPELLANT: | Percia Kolak | ||||
| FIRST RESPONDENT: SECOND RESPONDENT: | Hunani Pty Ltd Dynamic Formwork (NSW) Pty Ltd | ||||
| FIRST RESPONDENT’S INSURER: SECOND RESPONDENT’S INSURER: | GIO Workers Compensation (NSW) Limited GIO Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC1628-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 22 February 2008 | ||||
| DATE OF APPEAL DECISION: | 19 June 2008 | ||||
| SUBJECT MATTER OF DECISION: | Lump sum compensation; multiple post 31 December 2001 injuries; circumstances in which the effects of multiple injuries can be aggregated to meet the threshold for compensation under section 67 of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Taylor & Scott | |||
| First and Second Respondent: | Sparke Helmore | ||||
| ORDERS MADE ON APPEAL: | Paragraphs one and two of the Arbitrator’s determination of 22 February 2008 are revoked and the matter is remitted to the same Arbitrator for the entry of formal orders in accordance with the reasons in this decision and for determination of the issue of apportionment. Paragraph three of the Arbitrator’s determination of 22 February 2008 is confirmed. | ||||
| The Respondents are to pay the Appellant Worker’s costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 20 December 2002 Perica Kolak, (‘the Appellant Worker’), injured his back in the course of his employment with Hunani Pty Ltd (‘the First Respondent/Hunani’). He reported the injury, sought medical treatment and continued working on lighter duties until a new foreman started in about April or May 2004 when Mr Kolak’s employer changed to a related company, Dynamic Formwork Pty Ltd (‘the Second Respondent/Dynamic’), and his duties returned to normal, requiring him to engage in heavy lifting. On 12 November 2004, he again injured his back when lifting timber and he ceased work because of his pain on 17 November 2004.
By an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 28 March 2007, Mr Kolak seeks lump sum compensation in respect of 14% whole person impairment as a result of his injury on 20 December 2002 and the nature and conditions of his employment from 23 February 2001 until 28 April 2004. At a conciliation and arbitration on 31 May 2007, Mr Kolak amended his claim to add the injury on 12 November 2004 and an injury as a result of the nature and conditions of his employment up to 17 November 2004.
In a Certificate of Determination dated 3 August 2007, the Arbitrator referred the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of the whole person impairment “attributed to the Applicant’s lumbar spine and to apportion as appropriate between each of the two frank injuries on 20 December 2002 and 12 November 2004 and the nature and conditions claim with a deemed date of injury on 17 November 2004” (Statement of Reasons for Decision, 3 August 2007, paragraph 18).
An AMS (Dr Dixon) examined Mr Kolak on 26 September 2007 and prepared a Medical Assessment Certificate (‘MAC’) on 9 October 2007 certifying him to have a whole person impairment of 4% in respect of each of the three injuries referred to him, giving a total impairment of 12%.
At the conciliation and arbitration on 14 February 2008, counsel for the First and Second Respondents argued that Mr Kolak had no entitlement to compensation for pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) because he suffered three discrete injuries and no one of those injuries met the 10% threshold in section 67. In a reserved decision delivered on 22 February 2008, the Arbitrator accepted that argument and made the following determination:
“1.I enter an award against the First Respondent in favour of the Applicant in respect of Section 66 entitlement pursuant to Section 325 Certificate – 4% WPI - $5,000.00
2.I enter an award against the Second Respondent in favour of the Applicant in respect of Section 66 entitlement pursuant to Section 325 Certificate – 8% WPI - $10,000.00.
3.I order the Respondents pay the Applicant's costs to be assessed if not agreed.”
By an appeal filed on 20 March 2008, the Appellant Worker seeks leave to appeal the Arbitrator’s determination.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no dispute that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
a)finding that after the injury/incident on 20 December 2002 there was a change in the pathology of Mr Kolak’s L4/5 vertebra and L4/5 intervertebral disc as a result of the second injury and/or the third injury, and
b)in inferring that there had been a change in the pathology in Mr Kolak’s L4/5 vertebra and intervertebral disc by reference to the radiological reports without the assistance of expert medical opinions before him.
REVIEW
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
I intend to apply the above principles in the matter before me.
THE ARBITRATOR’S REASONS
The Arbitrator referred to the decision of Richardson v Warrie Grazing Pty Ltd [2006] NSWWCCPD 159 (‘Richardson’), in which the question to be determined was whether the worker’s injuries had resulted in one loss or two under the “Table – Compensation for permanent injuries” applicable to injuries sustained before 1 January 2002. The principles discussed in that case have no application to the present matter, which deals with multiple post-January 2002 injuries. As a result of the amendments introduced in the Workers Compensation Legislation Amendment Act 2001 (‘the 2001 Amending Act’), sections 65, 66 and 67 have been substantially amended and the previous approach to aggregating the effect of multiple injuries is no longer applicable. To the extent that he considered the test discussed in Richardson is relevant to the present matter, the Arbitrator erred.
The Arbitrator then referred to the principles discussed in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’) and noted that the parties agreed that the Commission is now required to focus on injury rather than loss (Reasons, paragraph 16). Counsel for the Respondents argued, as has been argued on appeal, that Mr Kolak has not suffered from the same injury (that is, the same pathology) in each of the relevant incidents, but suffered different pathologies. At T45.17 counsel submitted that there was a “definitively different pathological process” and that the “L3/4 postero-lateral disc protrusion is no more. There is now what appears to be an L4/5, L5/S1 nerve root compression as a result of either a combination of continuing degenerative but, more importantly, symptomatically… as a result of the second injury”. At T46.13 he added:
“But what has happened is over this same period of time the degeneration has continued, the bulge is still there, but what has happened is symptomatologically [sic] the changes have been made symptomatic by this episode, but the pathology is different, in our respectful submission. That is the important part. The L3/4 is gone as a cause. It's now at the L4/5 level, which is why we’ve got an L4/5 distribution, sciatica, which is still evident when the applicant is examined in 2007.”
Next, it was submitted that Mr Kolak only complained of back pain after the 2002 incident and complained of back and left leg pain after the 2004 incident. This additional symptom, combined with the MRI scan in 2005 showing an annular tear, demonstrated, so it is argued, that the injury (pathology) resulting from the 2004 incident was different to the injury (pathology) resulting from either the 2002 incident or the nature and conditions of employment. It was also argued that the “mild curve convex to the right” revealed in the November 2004 x-ray confirmed that the 2004 incident caused a different injury (pathology) to that caused by the 2002 incident (T44.18).
The Arbitrator accepted this argument and found at paragraph 22 of his Reasons:
“I consider that a careful analysis of the medical material and in particular the objective radiological reports support the views expressed by Mr Baker, that is to say that following the events in 2004 there has been a change in pathology with evidence of a mild curve convex to the right which had not previously been there, and with indications of left leg pain which had not previously been apparent or the subject of complaint. Based on the material before me, I find that there has been a change in pathology since the second accident so that applying the test in Edmed there is not one pathology evident from the two or more incidents. In coming to that view I have taken careful note of Mr Austin's submissions that one must look at pathology not symptomology [sic].”
SUBMISSIONS, ISSUES AND EVIDENCE
The Appellant Worker submits:
a)the Arbitrator misdirected himself as to the nature of his inquiry. The issue is whether Mr Kolak suffered one or more injuries for the purpose of section 67 of the 1987 Act. The Arbitrator wrongly confined himself to an artificial inquiry of whether the radiological evidence in 2002 and 2004 demonstrated a change in the pathology in Mr Kolak’s lumbar spine;
b)whilst he suffered three injuries within the meaning of section 4 of the 1987 Act, he must prove, for the purpose of sections 65, 66 and 67 of the 1987 Act, that he only suffered one injury (Edmed);
c)for there to be a finding of more than one injury (for the purpose of sections 65, 66 and 67), there must be a material change in the injurious pathology;
d)in a case involving multiple incidents, an Arbitrator must first determine the precise nature of the injury or injuries sustained. The Arbitrator did not do that;
e)the medical evidence supports a finding that Mr Kolak suffered soft tissue damage to his lumbar spine (in particular his L4/5 disc) as a result of one or more of the incidents he suffered at work;
f)the only pathology in issue is that at the L4/5 vertebra and L4/5 intervertebral disc. There is no evidence that there was a change in the pathology of L4/5;
g)the Arbitrator erred in relying on the x-ray report of Dr Phillips dated 29 November 2004 which stated “There is a mild curve convex to the right”. This observation by Dr Phillips was not indicative of pathology in the L4 and L5 vertebra or the L4/5 disc, but was an observation regarding the alignment of the lumbo-sacral spine;
h)Dr Phillips’ x-ray of 30 December 2002 revealed normal alignment but the facet joints showed early degenerative sclerosis and a small central herniation at L4/5 causing thecal compression;
i)Dr Phillips’ CT scan of 29 November 2004 stated “The mild spondylosis and mild degenerative facet arthritis at the lower levels is noted”. He added “The discs at all levels show mild diffuse annular bulge. There is no focal herniation”;
j)an MRI by Dr Robinson dated 9 November 2005 made similar findings with regard to the L4/5 disc, but added that the bulge at that level was associated with an annular tear which has caused slight effacement of the thecal sac. The herniation referred to in the 2002 CT scan was evidence of the existence of the annular tear referred to in the MRI scan. Neither the “tear” nor the “mild curve convex to the right” were evidence of a change in pathology;
k)the terms “herniation”, “tear” and “prolapse” are often used interchangeably by doctors and use of the term “tear” in the MRI report does not evidence a change in pathology. There is no evidence of any material change at the L4/5 level on the 2002 CT compared to the 2005 MRI. The reference to the curvature of the spine is irrelevant;
l)the Arbitrator’s finding that the 29 November 2004 CT demonstrated a worsening of the pathology in Mr Kolak’s L4/5 vertebra and disc is unsupported by the evidence, and
m)the Arbitrator erred in making a finding as to change in pathology solely on the radiological reports as it required him to draw an inference (i.e. that there had been a change in pathology) on an inference (that the curvature of the spine had been caused by the injury) and this conclusion was not supported by the evidence.
The Respondents submit:
a)to succeed, Mr Kolak has to establish that his injuries have resulted in identical pathology. As there was a change in the pathology suffered by Mr Kolak between 2002 and 2004, he cannot succeed;
b)in Edmed it was held (at [39]) that in order for the effect of two or more injuries to be aggregated to meet the section 67 threshold, the “pathology arising from each incident must be identical” and that test is not satisfied in the present matter;
c)the terms “herniation”, “bulge” and “tear” do not refer to the same condition. The term “bulge” is used to describe a less severe change, whereas a “herniation” refers to a situation where the disc actually “ruptures” which can cause the spinal nerves and spinal cord to become compressed. An annular tear occurs when the liquid which is normally contained in the annulus in the centre of the disc actually escapes the annulus itself and comes into contact with the innervated tissue;
d)the CT of 9 December 2004 revealed “significantly different pathology” to that shown in the CT of 30 December 2002 in that:
(i) the L5/S1 disc was impacting upon the thecal sac, something not reported in 2002, and
(ii) in 2004 scan revealed significant osteo-arthritic degenerative change throughout the lumbar spine, which is likely to have been caused or aggravated by the nature and conditions of employment in 2004.
e)the tear revealed on the MRI scan in 2005 is evidence of a change in pathology;
f)the x-rays taken in 2002 and 2003 reveal normal spinal alignment but the x-ray of 29 November 2004 reveals a “mild curve convex to the right”, which is clear evidence of altered pathology;
g)the presence of disc protrusions can alter the position of the vertebra both immediately above and below the disc, thereby causing an alteration in the alignment of the spine. If this were to happen at more than one level (in this case at L3/4, L4/5 and L5/S1) then it is quite possible that this pathology could indeed be the cause of altered alignment of the spine;
h)the Arbitrator’s findings were not based solely on the radiological evidence, but also on Mr Kolak’s own statement taken in 2002 contrasted with his complaints following the second accident (Reasons, paragraph 21), and
i)the totality of the evidence led the Arbitrator to conclude that the three incidents did not result in “identical pathology” as required under the Edmed test and the appeal should be dismissed.
The issue to be determined is identical to that determined in Edmed. In that case the worker was injured in two separate incidents. In the first he sustained the following injuries (or pathologies):
(a)fractures of the right scaphoid and distal radius;
(b)a graze to the right elbow;
(c)a tear to the right triangular fibrocartilage, and
(d)bruising of the ulnar nerve at the elbow.
In the second incident he sustained the following injuries (or pathologies):
(a)a new right scaphoid fracture;
(b)a tear of the scapho-lunate ligament, and
(c)increased ulnar nerve symptoms.
In determining whether the effect of multiple incidents can be combined to meet the section 67 threshold, I held that an impairment resulting from the “same injury” (the same pathology) are to be “assessed together” regardless of whether they arise from the same “incident” or from separate incidents (Edmed at [27]). In that case, however, the evidence established that the two incidents resulted in different injuries (pathologies) in at least three material respects:
(a)in the first incident Mr Edmed fractured his scaphoid and radius, but only his scaphoid in the second incident;
(b)in the first incident Mr Edmed injured his right triangular fibrocartilage, but in the second he injured his scapho-lunate ligament, and
(c)there was no history of any graze to the right elbow in the second incident though it was accepted that his ulnar nerve symptoms increased after this incident.
Whether the three incidents in the present matter have resulted in the same injury (pathology) requires a detailed consideration of the evidence.
After the first incident, Mr Kolak received treatment from his local general practitioner and was referred for x-rays and a CT scan of his lumbo-sacral spine. The radiology report from Dr Phillips dated 30 December 2002 reads:
“Plain films demonstrate normal alignment. The lower facet joints show early degenerative sclerosis. Small osteophytes developing on the veterbral [sic] bodies. Disc spaces appear preserved.
CT performed from L3 to S1 though [sic] the lower three disc levels.
There is a small central and left posterolateral herniation of the L3/4 disc indenting the canal and compressing the thecal sac. There is also a small central herniation at L4/5 causing thecal compression. Mild annular bulge at L5/S1 without disc prolapse.
Degenerative facet arthritis noted. There is no associated canal stenosis and the exist foramina and lateral recesses are patent.”
Mr Kolak continued at work on light duties until April or May 2004 when he was put on full duties resulting in an increase in his back pain. Whilst on light duties Mr Kolak had a further x-ray and CT scan of his lumbar spine. This time the scan was performed by Dr Wong, who reported on 10 September 2003:
“At L3/4, there is a small central disc protrusion with indentation of the thecal sac. The spinal and nerve root canals seem preserved. The facet joints are within normal limits.
At L4/5, there is a moderate central disc protrusion with indentation of the thecal sac. The spinal and nerve root canals seem preserved. The facet joints are within normal limits.
At L5/S1, there is a mild diffuse disc bulge. The spinal and nerve canals are preserved. The facet joints are within normal limits. There is [sic] apparent bridging osteophytes across the anterior aspects of the S1 joints.
CONCLUSON: Disc protrusion and bulge are noted with indentation of the thecal sac. Bridging osteophytes are noted at the anterior aspect of the S1 joints. The nerve root canals seem preserved.
X-RAY LUMBAR SPINE: Alignment of the lumbar spine appears normal. There is mild disc space narrowing at L3/4, L4/5, L5/S1. Marginal osteophytes are present at L3/4. The pedicles and the transverse processes are intact. The facet joints are within normal limits. Degenerative changes are present in the S1 joints.”
After ceasing work on 17 November 2004, he underwent a further x-ray and CT at the hands of Dr Phillips on 29 November 2004 who reported:
“LUMBO-SACRAL SPINE X-RAY
There is mild curve convex to the right. Alignment normal in the lateral projection.
Slight spondylosis with sclerosis and osteophytes developing on vertebral endplates with mild degenerative change in lower lumbar facet joints. No compression fracture or other focal abnormality.
CT LUMBO-SACRAL SPINE
Scans of the L3/4, L4/5 and L5/S1 levels obtained:
The mild spondylosis and mild degenerative facet arthritis at the lower levels is noted. The reactive changes do cause a degree of bony narrowing of exit foramina and lateral recesses at both L4/5 and L5/S1. This results in mild exiting nerve root compression.
The discs at all levels show mild diffuse annular bulge. There is no focal disc herniation. No other signs of thecal compression.”
A further CT scan was conducted on 9 December 2004 (report 10 December 2004 by Dr Joseph Sanki), which, so far as is relevant, stated:
“…
At L3/4, there is a minor broad based disc bulge. The disc is abutting the left L3 nerve root, in a far lateral location. Minor degenerative changes are present in the discovertebral [sic] joint, with evidence of end plate sclerosis and end plate osteophyte formation.
At L4/5, there is a minor broad based disc bulge, which is minimally indenting the anterior aspect of the thecal sac. The L4 nerve roots exit without evidence of compression. Minor degenerative changes are present in the discovertebral [sic] joint, with evidence of end plate sclerosis and end plate osteophyte formation.
At L5/S1, there is a minor central disc bulge, which is minimally indenting the anterior aspect of the thecal sac. The L5 nerve roots exit without evidence of compression. The proximal S1 nerve roots appear within normal limits. Minor spondylotic [sic] changes are present in the discovertebral [sic] joint, with evidence of loss of disc height, end plate sclerosis and end plate osteophyte formation. Moderate osteoarthritis changes are present in both sacroiliac joints, with evidence of subchondral sclerosis, joint space narrowing and osteophyte formation. Minor degenerative changes are also seen in the left L5/S1 facet joint.
Conclusion
Multi-level spondylotic [sic] changes are present in the sites described above.”
On 9 November 2005, Mr Kolak underwent an MRI scan. The reporting radiologist, Dr Robinson, stated:
“At L5/S1, the disc is slightly narrowed. There is a very mild degree of posterior annular disc bulging. Some facet joint degenerative change and hypertrophy is noted. The spinal canal and neural foramina are preserved.
At L4/5, there is evidence of some disc dehydration. Posterior annular disc bulging is noted. This is associated with a focus of hyperintensity [sic] in the posterocentral [sic] aspect of the disc on the T2 images, consistent with a focal annular tear. There is also some facet joint hypertrophy at these levels. These changes have caused slightly [sic] effacement of the anterior aspect of the thecal sac. The neural foramina are preserved.
L3/4, there is evidence of some disc dehydration at this level. There is no significant disc herniation. Some facet hypertrophy is noted which has caused slight narrowing of the spinal canal.
At all other levels, the intervertebral discs appear within normal limits. The spinal canal is preserved. Vertebral alignment is within normal limits. The conus outlines normally. No other focal bony or soft tissue abnormalities are visualised.
COMMENT
At L4/5, there is a posterior annular disc bulge with associated annular tear which has caused slight effacement of the thecal sac. At L3/4, there is some facet joint hypertrophy and degenerative change which has also caused slight narrowing of the spinal canal.”
In support of his claim, Mr Kolak relied on reports from Dr Collins dated 17 January 2006 and Dr Sanki dated 27 May 2006. Dr Collins took a full history of the three incidents and referred to and considered all of the radiology reports. He diagnosed Mr Kolak to have a prolapse of the L4/5 disc with radicular pain in the left hip region and degenerative disease of the lumbar spine. On the issue of the relationship between the condition and the injuries sustained, the doctor said:
“The condition of the patient’s back, is in my opinion the result of the accidents in 2002 and 2004 together with the nature and conditions of his work.”
Dr Sanki took a history of the work incidents and also noted that he had treated Mr Kolak for a disc injury in his low back about 15 years ago, but he referred only to the 9 December 2004 CT and the MRI scan. At examination on 30 January 2006, he found a diminished sensation at L3/4 with absent reflexes at the ankle joints on both sides but normal knee jerks. At examination on 24 April 2006, Dr Sanki noted two centimetres of wasting in the left thigh (whether this resulted from Mr Kolak’s back pathology or from a problem with his left knee is not clear) and “diminished sensations in the left leg at L3-4-5” with “weak dorsiflexion and ventriflexion [sic] of the left big toe” (page three). Dr Sanki’s provisional diagnosis was “disc injury in the lumbar region at L3-4 level with L3-4 radiculopathy, and S1 radiculopathy”.
For the insurer, Dr Evans examined Mr Kolak on 30 November 2004 and Dr Panjratan on 24 August 2006. Dr Evans took a full history of the relevant injuries and also noted that Mr Kolak injured his back in 1985 and was off work for a period because of that injury. He referred to the x-rays and CT scans done in December 2002 and November 2004. Under “Opinion” on page three, Dr Evans stated:
“He has degenerative changes in the back and some of these could be post-disc injuries, particularly at L3/4 and L4/5, and from the nature and conditions of his work in the construction industry.”
Dr Panjratan took a history of the 2002 incident and the heavy nature of the work performed after April 2004, but not of the December 2004 incident. He recorded that Mr Kolak worked until 17 November 2004 when he collapsed, unable to continue. In respect of the 1985 injury, he noted that Mr Kolak recovered and returned to heavy work. He referred to all of the radiological examinations save for the 2003 report. He diagnosed Mr Kolak to have “mechanical low back pain with degenerative changes” (page six).
Last, the AMS took a comprehensive history of the relevant work injuries and of the 1985 back injury. On examination, he noted there was a degree of sciatic tilt to the right (page three) and there were sensory changes in the left leg in an L5 distribution with one centimetre of wasting. Ankle jerks were difficult to elicit. Dr Dixon referred to all of the radiological reports save for the report of 9 December 2004. Under “summary of injuries and diagnosis” on page four, Dr Dixon concluded:
“In summary this patient has had two significant back strain injuries at work in 2002 and in 2004, his duties as a formwork carpenter. He has residual low back pain with lumbar stiffness and sciatic complaint more marked on the left where there are some compressive features. He has residual lumbar stiffness with lumbar-sacral facet arthralgia more marked on the left.”
The first sentence in the above quote seems to be incomplete. It may well be that the AMS intended to say “In summary this patient has had two significant back strain injuries at work in 2002 and in 2004, and an injury as a result of his duties as a formwork carpenter.” This interpretation is consistent with the AMS’s ultimate apportionment of 4% impairment to each of the incidents he assessed. However, as this interpretation is speculative, I do not base my decision on it.
DISCUSSION AND FINDINGS
The Arbitrator based his conclusion on three matters that in his view demonstrated “a change in pathology since the second accident”:
a)the objective radiological reports support the views expressed by counsel for the Respondents;
b)the evidence of a mild curve convex to the right (revealed in the November 2004 x-ray), which had not previously been present, and
c)the indications of left leg pain which had not previously been apparent or the subject of complaint.
I do not accept that the radiological reports support the submissions made by counsel for the Respondents. The scans reveal that Mr Kolak has abnormalities in his lumbar spine in the form of disc abnormalities and degenerative changes. The precise description of those abnormalities has altered from scan to scan, but the pathology revealed has not. The 2002 scan revealed disc abnormalities (to use a more neutral term) at the L3/4, L4/5 and L5/S1 levels, describing them the “herniations” at L3/4 and L4/5 and as a “mild annular bulge” at L5/S1. Those abnormalities were confirmed in the September 2003 scan. The November 2004 scan, taken after the further work incidents, described the abnormalities as “mild diffuse annular bulge[s]” at all levels with no “focal disc herniation”. Given Mr Kolak’s increase in symptoms in November 2004, it seems highly unlikely that the previous disc abnormalities had resolved or settled.
The x-rays of 2002 and November 2004 both revealed degenerative changes in the lumbar spine, though they used different terminology to describe them. In 2002 they were described as “degenerative sclerosis” with “osteophytes” and “degenerative facet arthritis”. In November 2004 they were described as “spondylosis with sclerosis and osteophytes…with mild degenerative change in [the] lower lumbar facet joints”. Whether this represented a change in the level of degeneration over time is not dealt with in the evidence. However, the November 2004 scan did not reveal any new or different injury or pathology. The degenerative changes and the disc abnormalities were in existence in the 2002 investigations, at a time when Mr Kolak had significant symptoms as a result of his first work incident. The December 2004 scan also revealed disc abnormalities (described as disc bulges) and degenerative changes (spondylitic changes, end plate sclerosis and end plate osteophyte formation). There is no evidence to suggest that these changes represent new or different pathology and the Arbitrator erred in making that finding.
I do not accept the Respondents’ submission that the December 2004 scan reveals “significantly different pathology” to that shown in the 2002 scan. The December 2004 scan refers to a “minor central disc bulge [at L5/S1], which is minimally indenting the anterior aspect of the thecal sac”. In the 2002 scan, there is no reference to the L5/S1 bulge indenting the thecal sac, but this difference is of no significance as I note that the MRI scan also makes no reference to the L5/S1 bulge indenting the thecal sac.
It is also argued that the December 2004 scan reveals significant osteo-arthritic degenerative changes throughout the lumbar spine (likely, it is argued, to have been caused or created by the nature and conditions of employment in 2004), which is significantly different to the scan done in 2002. The evidence does not support this submission and I reject it. As noted above, the 2002 scan revealed degenerative sclerosis in the lower facet joints, degenerative facet arthritis, and small osteophytes on the vertebral bodies. At most, the later scan may have revealed a worsening of those degenerative changes but that was not evidence of a new injury or of different pathology. It was, if anything, a deterioration of the same pathology.
Dealing further with the MRI scan, the parties agree that such a scan is a more sensitive investigation than a CT scan and that, as a result, it is capable of revealing in more detail the derangement of the soft tissues in a persons back (including a disc and the annulus). The 2005 MRI scan describes the abnormality at L5/S1 as a mild degree of posterior annular disc bulging and the abnormality at L4/5 as showing evidence of disc dehydration with posterior annular disc bulging “consistent with a focal annular tear”. That is, it confirmed the fact that there was bulging of the L4/5 disc, as shown on the early CT scans, but added that the images were consistent with a focal annular tear. Whether the annular tear can be described as ‘different pathology’ to that revealed in the earlier CT scans is not addressed in the evidence before the Arbitrator and no application has been made to rely on fresh or additional evidence on appeal. It is not suggested that Mr Kolak had a further accident immediately before the MRI scan and, in these circumstances, it is more probable than not that the pathology revealed in the MRI scan was present in 2004 and, possibly, 2002, but simply not revealed on the CT scans. In any event, in the absence of expert evidence, I do not accept that an annular tear is ‘different pathology’, in any relevant sense, to a disc “bulge”. It is a disc abnormality and that is the relevant pathology in the present matter. The precise terminology used is not, on the facts of the present case, of any consequence. Had the first incident been diagnosed as a simple muscle strain with a normal CT scan, and a later scan, after a further incident, revealed a relevant disc abnormality, that may well have justified a finding that Mr Kolak had received a new injury or an injury resulting in different pathology. However, that is not the evidence.
It was not open to the Arbitrator, on the available evidence, to conclude that the annular tear at L5/S1 was evidence of a new injury or different pathology to that revealed on the earlier scans. In respect of the L3/4 disc, the MRI revealed “some dehydration” (as there was at L4/5) but no “significant disc herniation” (emphasis added). This finding is not necessarily inconsistent with the previous CT scans and in the absence of an expert radiologist commenting on the different scans it does not indicate that the L3/4 disc had “settled”, as was submitted by counsel for the Respondents (T44.8).
Dealing with the “mild curve convex to the right”, there is no evidence that such a change is evidence of a different injury (pathology). Many conditions can cause a curvature of the spine and in the absence of expert evidence it was not open to the Arbitrator to conclude that the curvature referred to in the November 2004 x-ray indicated a change in pathology. It may well be, and I express no concluded view in the absence of expert evidence, that the curvature was merely a manifestation of the injuries sustained in the three incidents under consideration. Whilst Dr Dixon noted the sciatic tilt to the right (page three) he did not identify that feature as a sign of ‘different pathology’ resulting from the 2004 injury. His diagnosis was of “two significant back strain injuries” in 2002 and 2004 leaving Mr Kolak with residual low back pain with lumbar stiffness and sciatica, more marked on the left where there are some compressive features. Precisely what he thought of the nature and conditions claim is unclear, but the fact that he attributed a 4% whole person impairment to that injury suggests that he gave that ‘incident’ the same significance and weight as the two frank injuries. The only reasonable inference from the whole of Dr Dixon’s report is that the sciatica he referred to resulted from the three work incidents.
The development of leg pain in 2004 did not, on the evidence, indicate a new injury or different pathology. Mr Kolak’s pathology was well established before the 2004 injuries and was confirmed by the scans after those injuries. The 2002 and 2003 CT scans clearly established that he suffered from degenerative changes and disc abnormalities before November 2004. The injury on 12 November 2004 caused an increase in Mr Kolak’s symptoms, but neither Mr Kolak’s evidence nor the November and December 2004 scans revealed any new or different pathology. Therefore, Mr Kolak’s increase in symptoms should be seen as a worsening of his pre-existing symptomatic condition (pathology) rather than the development of a new injury or new pathology.
The qualified medical evidence has provided only limited assistance on the issue in dispute. Dr Collins’ diagnosed Mr Kolak as having a prolapse of the L4/5 disc with radicular pain in the left hip region and degenerative disease of the lumbar spine”. He added that that “condition” was the “result of the accidents in 2002 and 2004 together with the nature and conditions of his work”. This evidence strongly suggests that Mr Kolak’s injury (pathology) resulting from the three incidents was the same.
Dr Sanki considered that Mr Kolak sustained a disc injury at L3/4 with L3/4 radiculopathy and S1 radiculopathy. He provides no support for the Respondents’ argument that Mr Kolak’s injuries resulted in different pathologies.
Dr Evans’ report is also of no assistance, as he did not address the relevant issue. However, his conclusion that Mr Kolak has degenerative changes, some of which could be “post-disc injuries, particularly at L3/4 and L4/5, and from the nature and conditions of his work”, is not inconsistent with Dr Collins’ conclusion.
Dr Panjratan’s report is defective in that he did not take a history of the 2004 frank injury. Nevertheless, his diagnosis of “mechanical low back pain with degenerative changes” does not suggest that different pathology arose from the two incidents of which he did have a history.
CONCLUSION
It follows that the Arbitrator erred in finding that, following the incidents of 2004, there was a change in pathology that amounted to a new or different injury. Consistent with the evidence from Dr Collins and Dr Dixon, Mr Kolak sustained the same injury in the three work incidents, namely, strain injuries affecting the discs in his lumbar spine together with degenerative changes. The same pathology was present in 2002 and in 2005.
As a result, he is entitled to have his claim assessed on the basis that the work incidents have resulted in one injury (pathology) and the impairments found by the AMS can be aggregated. The impairment found by the AMS is 12% (see page paragraph 10(b) of the MAC at page five) and that is the award that should be made in favour of the Appellant Worker. That award gives rise to an entitlement to compensation for pain and suffering under section 67 of the 1987 Act. The Arbitrator assessed that compensation to be $10,000 and neither party has challenged that assessment.
The remaining issue relates to apportionment of the lump sum compensation. As neither party has made submissions on this point I remit the matter to the Arbitrator for submissions to be made on the question of apportionment and for the entry of formal orders in accordance with the reasons in this decision.
DECISION
Paragraphs one and two of the Arbitrator’s determination of 22 February 2008 are revoked and the matter is remitted to the same Arbitrator for the entry of formal orders in accordance with the reasons in this decision, and for determination of the issue of apportionment.
Paragraph three of the Arbitrator’s determination of 22 February 2008 is confirmed.
COSTS
The Respondents are to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
19 June 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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