Krajewski v Otis Elevator Company Pty Ltd
[2022] NSWPIC 46
•4 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Krajewski v Otis Elevator Company Pty Ltd [2022] NSWPIC 46 |
| APPLICANT: | Leon Michael Krajewski |
| RESPONDENT: | Otis Elevator Company Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 4 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for past medical and related treatment payable under section 60 of the Workers Compensation Act 1987 (1987 Act) and claim for permanent impairment compensation payable under section 66 of the 1987 Act for permanent impairment resulting from injury sustained to the cervical spine, lumbar spine, left upper extremity (left shoulder), left lower extremity (left knee) and scarring; while it was not disputed the applicant sustained injury to his lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the course of his employment with the respondent, it was disputed he sustained these injuries as a result of the nature and conditions of his employment with the respondent; it was disputed the applicant sustained injury to his cervical spine as a result of the nature and conditions of his employment with the respondent; the deemed date of injury was also disputed; Held - the applicant sustained injury to his cervical spine, lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the nature of a disease injury with his employment with the respondent being the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury; the deemed date of injury is the date the applicant made his claim for permanent impairment compensation; the applicant has an entitlement to medical and related treatment payable under section 60 of the 1987 Act and the cervical spine surgical treatment the applicant came to was reasonably necessary treatment for the injury he sustained to his cervical spine; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. By consent, the Application to Resolve a Dispute is amended to include a claim for permanent impairment compensation resulting from scarring, with a deemed date of injury of 28 August 2020. 2. The applicant sustained injury to his cervical spine, lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the nature of a disease injury with his employment with the respondent being the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury. 3. The deemed date of injury is 28 August 2020. 4. The applicant has an entitlement to medical and related treatment payable under s 60 of the Workers Compensation Act 1987 for the injury in the nature of a disease injury he sustained to his cervical spine, lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the course of his employment with the respondent. The cervical spine surgical treatment the applicant came to under the care of Dr Al Khawaja was reasonably necessary treatment for the injury he sustained to his cervical spine and the respondent is to pay the medical or related treatment costs associated with this surgical treatment in accordance with s 60 of the Workers Compensation Act 1987. 5. The applicant’s claim for permanent impairment compensation resulting from injury in the nature of a disease injury to his cervical spine, lumbar spine, left upper extremity (left shoulder), left lower extremity (left knee) and scarring with a deemed date of injury 28 August 2020 is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons: (a) Application to Resolve a Dispute and attached documents (with the report dated 31 March 2021 prepared by Associate Professor Brew removed), and (b) Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Leon Michael Krajewski (Mr Krajewski), was employed by the respondent, Otis Elevator Company Pty Ltd (Otis). He was employed for many years as an elevator mechanic. He is currently 72 years of age.
In these proceedings Mr Krajewski makes the following claims under the Workers Compensation Act 1987 (1987 Act):
(a) past medical and related treatment payable under s 60 of the 1987 Act particularised in the sum of $90,568, and
(b) permanent impairment compensation payable under s 66 of the 1987 Act for 55% whole person impairment resulting from injury sustained to his cervical spine (neck), lumbar spine (low back), left upper extremity (left shoulder), left lower extremity (left knee) and scarring.
In making his claim for compensation payable under the 1987 Act Mr Krajewski relies on
s 4(b)(i) and (ii) of the 1987 Act. He describes the circumstances of injury sustained in the course of his employment with Otis, with a deemed date of injury of 28 August 2020, in the following terms:“The Applicant alleges that the nature and conditions of his work as an elevator mechanic over a period of 46 years placed significant stress, strain and load on his body, namely to his cervical spine, lumbar spine, shoulders and left knee causing the degenerative diseases from which he now suffers.
The Applicant asserts that the injury arose in the course of employment and that:
caused the Applicant to contract a disease/s; and/or caused an aggravation, acceleration, exacerbation and deterioration of his degenerative disease/s.
It is asserted that the heavy labouring nature of his duties were the main contributing factor to these injuries.”
Mr Krajewski’s claim is declined with notices dated 3 January 2019[1] and 15 September 2021[2] issued to him in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act1998 (1998 Act). While it is not disputed Mr Krajewski sustained injury to his lumbar spine, left shoulder and left knee in the course of his employment with Otis, it is disputed that he sustained these injuries as a result of the nature and conditions of his employment with Otis. It is also disputed Mr Krajewski sustained injury to his neck as a result of the nature and conditions of his employment with Otis.
[1] Application to Resolve a Dispute (ARD) at page 54.
[2] ARD at page 81.
ISSUES FOR DETERMINATION
The parties agree that the following issues are in dispute:
(a) alleged injury to the cervical spine resulting from the nature and conditions of employment with Otis;
(b) alleged injury to the lumbar spine, left shoulder and left knee resulting from the nature and conditions of his employment with Otis;
(c) alleged deemed date of injury of 28 August 2020 (being the date Mr Krajewski made his claim for permanent impairment compensation resulting from alleged injury to his cervical spine, lumbar spine, left shoulder and left knee resulting from the nature and conditions of his employment with Otis);
(d) whether the surgical treatment Mr Krajewski underwent for his cervical spine injury was reasonably necessary treatment, and in the absence of ultimate acceptance that the prosecuted date of injury is the deemed date of injury of 28 August 2020;
(e) failure by Mr Krajewski to give notice of injury within the prescribed timeframe
(s 254 of the 1998 Act), and(f) failure by Mr Krajewski to make a claim for compensation within the prescribed timeframe (s 261 of the 1998 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Krajewski’s claim for compensation came before me for teleconference on 8 November 2021. Mr McEnaney of counsel appeared for Mr Krajewski, instructed by Ms Gilford, solicitor. Mr Turner, solicitor, appeared for Otis. Mr Rafferty, EML was present. Mr Krajewski was present.
With Mr Krajewski’s claim unresolved at teleconference, Mr Krajewski’s claim came before me for conciliation/arbitration hearing on 7 December 2021. Mr McEnaney appeared for
Mr Krajewski, instructed by Ms Gilford. Mr Stockely of counsel appeared for Otis, instructed by Mr Turner. Mr Rafferty was present. Mr Krajewski was present.Following my discussions with counsel, 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
As Mr Stockley objected to the number of independent medical examiner reports relied on by Mr Krajewski in these proceedings, Mr McEnaney did not press for the admission into evidence of the report dated 31 March 2021 prepared by Associate Professor Brew
(A/Prof Brew)[3].[3] ARD at page 47.
Accordingly, the following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents (save for the report of A/Prof Brew), and
(b) Reply and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
A brief review of evidence follows.
Statements of Mr Krajewski
Mr Krajewski relies on two statements, the first in time is dated 27 November 2020[4] and the second is dated 11 March 2021[5].
[4] ARD at page 1.
[5] ARD at page 12.
Mr Krajewski said he commenced employment with Otis as an apprentice electrical fitter mechanic in February 1965. He described in some detail his work duties with Otis and said that within in the industry he was known as a “lift mechanic”. He said he liked his work as there “was always something different to do” and he worked hard. He said there was always a great deal of overtime available. Mr Krajewski ceased employment with Otis on 13 September 2011, with his employment terminated “on medical grounds because the prognosis for my injuries in the foreseeable future was not good”.
Mr Krajewski described sustaining injury to his left shoulder injury to his lumbar spine and injury to his left knee in the course of his employment with Otis.
Relevant to his cervical spine injury, Mr Krajewski said:
“In or around March 2018, my fingertips became numb, and I had trouble doing up my bottons on my shit. Leading up to this I had falls and my balance was not steady.
I was subsequently referred to and treated by Dr Darweesh Al Khawaja.”
Mr Krajewski described coming to surgical treatment in the nature of an anterior cervical discectomy and interbody fusion (C3/4, C4/5, C5/6 and C6/7) on 10 July 2018 under the care of Dr Al Khawaja, with three months in hospital. Mr Krajewski also described coming to further urgent surgical treatment for an infection on 9 December 2018, with post-operative intravenous antibiotics for two weeks followed by antibiotic medication for three months.
Claims for compensation
Over time Mr Krajewski has made a number of claims for compensation, which are set out in an email dated 24 May 2021 from SIRA addressed to his solicitors[6] and relevantly include claims for compensation resulting from injury sustained to his cervical spine, lumbar spine, left shoulder and left knee.
[6] ARD at page 77.
Over time Mr Krajewski has also relevantly received permanent impairment compensation payments for injury sustained to his lumbar spine, left shoulder and left knee, which are also documented in the email referred and appear to be as follows:
(a) $2,500 for injury sustained to his left knee on 27 July 2004;
(b) $17,500 for injury sustained to his lumbar spine on 16 June 1993, and
(c) $17,903 for injury, including injury sustained to his lumbar spine on 13 February 2009.
Report of injury forms
Over time a number of report of injury forms have been completed by Otis. A report of injury form dated 16 February 2009[7] referred to injury sustained by Mr Krajewski to his low back on 13 February 2009. An undated initial notification of injury[8] referred to injury sustained by
Mr Krajewski to his left knee on 27 July 2004. A report of injury form dated 21 August 1996[9] referred to an aggravation injury on 11 July 1996 of a previous low back injury sustained by Mr Krajewski on 16 June 1993 and a report of injury form dated 21 July 1993[10] referred to the injury sustained by Mr Krajewski to his low back on 16 June 1993.
Treating medical evidence
[7] Reply at page 93.
[8] Reply at age 99.
[9] Reply at page 101.
[10] Reply at page 105.
Dr Chan
The clinical records of Dr Chan[11], treating general practitioner, included handwritten notes which I confess I found difficult to read. However, it does appear that as early as 15 May 2009 Mr Krajewski presented with “neck pain since back injury” and reference is made to “bending, lifting”. Also, in a response to specific questioning by Allianz, in a form dated 9 September 2013[12] Dr Chan provided a current diagnosis of work-related injury sustained by Mr Krajewski in terms of “lumbar, thoracic and cervical spine disc injuries with canal stenosis”.
[11] ARD commencing at page 101.
[12] ARD at page 101.
Dr Breit
Mr Krajewski was referred to Dr Breit, orthopaedic surgeon, relevant to his lumbar spine injury, with Dr Breit providing a number of reports. These reports are dated 2 September 1993[13], 9 September 1993[14], 20 September 1993[15], 7 October 1993[16], 28 October 1993[17], 25 November 1993[18] and 17 March 1994[19].
[13] Reply at page 83.
[14] Reply at page 85.
[15] Reply at page 86.
[16] Reply at page 87.
[17] Reply at page 88.
[18] Reply at page 89.
[19] Reply at page 90.
In his initial report Dr Breit noted Mr Krajewski had been working with Otis for some 28 years and had developed pain in his back, after carrying his tool box. Dr Breit described
Mr Krajewski as having worked “most of the time on the installation side” but moving into maintenance in more recent times after he sustained injury to his left shoulder. Dr Breit described Mr Krajewski’s current duties in the following terms:“This involves him carrying a bag weighing 15 kgs and sometimes more, most of the day travelling large distances by foot and frequently going up large flights of stairs.”
Following review of diagnostic imaging, while Dr Breit cautioned “this man is probably going to end up having decompression” he considered the most appropriate step at that time was a lumbar epidural, which when administered, provided Mr Krajewski with relief.
Mr Krajewski reportedly turned to work on restricted duties in about late October 1993 and on 17 March 1994 Dr Breit discharged from his care. At that time Dr Breit considered
Mr Krajewski fit for permanent restricted duties and noted that while Mr Krajewski was “coping with work” he reported “he does have backache towards the end of the day particularly if he has been busy”.
Dr New
Mr Krajewski came under the orthopaedic care of Dr New relevant to his lumbar spine injury and came to surgical treatment in late 2010 under his care. In his initial letter to Dr Chan dated 25 June 2009[20] Dr New reported:
“I reviewed this patient on Thursday 25th June, 2009 in my rooms at Penrith. He states to me that he has worked for over 44 years and in 1993 had neck discomfort and lumbar spine discomfort requiring treatment from Dr Robert Breit.”
[20] ARD at page 171.
Relevant to Mr Krajewski’s cervical spine injury Dr New referred him for diagnostic imaging and nerve conduction studies, and subsequent referral to Dr Farey for review. In his letter dated 30 June 2009[21] addressed to Dr Farey, Dr New wrote:
“…There is evidence of cord malacia and stenosis from myelomalacia and stenosis from C3 to C6.
I think he may become a candidate for surgical intervention, particularly of his cervical spine and I would be grateful for your opinion.
Should he require further cervical review or surgery I would be grateful if you could proceed with this.”
[21] ARD at page 170.
Dr Farey
As noted, Mr Krajewski was referred to Dr Farey, orthopaedic surgeon, principally in respect of his cervical spine injury. Dr Farey’s clinical records[22] included a report of an MRI of the thoracic spine dated 20 April 2009, which reported:
“… Incidental note is made of advanced spondylitic changes on the limited views of the cervical spine, this is seen at the C3/4, C4/5, C5/6 and C6/7 levels where there is multi level severe central canal stenosis with cord compression. Further evaluation with a dedicated MRI scan. There is bilateral foraminal stenosis of C3/4 with impingement of C3 nerve roots. Severe right foraminal stenosis at C4/5 and moderte left foraminal stenosis is seen. There is also central canal stenosis and bilateral foraminal stenosis at C5/6 and C6/7.”
[22] ARD commencing at page 151.
The subsequent MRI scan report dated 12 May 2009 provided comment:
“Severe central canal compromise in the upper cervical levels, most notable at C3/4 associated with focal signal alteration of the right hemi cord affecting myelomalacia. Multi level foraminal stenosis as described.”
In his report dated 29 July 2009[23], Dr Farey reported of Mr Krajewski that “[H]e now only experiences neck pain with left sided rotation” and noted:
“[C]linically, the cervical spine exhibited normal alignment and there was no local tenderness. There was mild restriction of rotation consistent with cervical spondylosis but the motion was pain free. Provocative tests for upper limb nerve root compression were negative. Lhermitte’s sign was negative.”
On this occasion Dr Farey confirmed Mr Krajewski suffered symptoms of cervical and lumbar spondylosis and while Dr Farey did not recommend surgical treatment “at present” he cautioned Mr Krajewski was at risk of developing symptoms of spinal cord compression.
[23] ARD at page 173.
In his report dated 18 January 2010[24] Dr Farey reported of Mr Krajewski that he had asymptomatic cord compression and while he did not recommend surgical treatment at that stage he planned to review Mr Krajewski in six months’ time with the benefit of an MRI scan. In his report dated 13 September 2010[25] Dr Farey confirmed Mr Krajewski continued to suffer asymptomatic spinal cord compression and in his report dated 12 March 2011[26], which post-dated Mr Krajewski coming to surgical treatment of his lumbar spine under the care of
Dr New, this reportedly continued to remain the case.[24] ARD at page 181.
[25] ARD at page 189.
[26] ARD at page 197.
Dr Al Khawaja
Sometime later, Mr Krajewski came under the care of Dr Al Khawaja, neurosurgeon. In his report dated 14 October 2019[27] Dr Al Khawaja confirmed he first reviewed Mr Krajewski on 18 May 2018, with Mr Krajewski suffering “significantly limited neck movements to all directions” and symptoms in his right arm and right leg at that time. An MRI of the cervical spine demonstrated what Dr Al Khawaja described as “multilevel disc injuries, the worst at C3/C4 with cord compression” and Mr Krajewski ultimately came to C3 to C7 anterior discectomy and fusion on 10 July 2018 and C3 to T1 posterior fixation and fusion on 17 July 2018 under his care. Dr Al Khawaja explained that although Mr Krajewski was discharged from hospital with significant improvement, Mr Krajewski developed a wound infection, which complicated his recovery.
[27] ARD at page 17.
In response to specific questioning and relevant to the cause of injury Mr Krajewski sustained to his cervical spine, Dr Al Khawaja said:
“Mr Krajewski’s employment is a substantial contributing factor to his neck injury. His type of job was a heavy duty job requiring lifting heavy objects and he used to rest the roof of the lift on his head which can cause a lot of damage and strain. There was a lot of pulling and pushing. This is well known to strain the cervical spine as well.”
In response to specific questioning relevant to the treatment Mr Krajewski had received for his cervical spine injury, which would include the surgical treatment to which he had come under his care, Dr Al Khawaja said:
“The treatment Mr Krajewski received was necessary, otherwise he would be in a wheelchair if he did not do it.”
Independent medical evidence
Dr Haynes
Mr Krajewski was assessed by Dr Haynes in his capacity as independent medical examiner on or about 20 December 1994. Dr Haynes provided a report of that date[28]. As at the date of assessment Mr Krajewski had reportedly worked with Otis for “some 30 years” and was described as having been involved in the installation of lifts for many years. While Dr Haynes noted the injury Mr Krajewski had sustained to his left shoulder in the course of his employment with Otis, his reporting predominantly canvasses the injury Mr Krajewski sustained to his lumbar spine in 1993 in the course of his employment with Otis. Following clinical examination and review of the diagnostic imaging made available to him Dr Haynes said:
“It does appear that the nature and conditions of his employment over several years contributed to his back condition.”
[28] Reply at page 79.
Dr Haynes further said:
“Hopefully long term prognosis will be for continued freedom from symptoms but as noted above it would be impossible to rule out recurrent symptoms in the future.”
Dr Bosanquet
Mr Krajewski was assessed on 18 February 2005 by Dr Bosanquet in his capacity as independent medical examiner. Dr Bosanquet provided a report dated 22 February 2005[29] in which he canvassed the injury Mr Krajewski had sustained to his left knee in 2004 in the course of his employment with Otis. At the time of assessment Dr Bosanquet considered
Mr Krajewski had made a full recovery from this work-related injury to his left knee.
[29] Reply at page 75.
Dr Stenning
Mr Krajewski was assessed on 15 April 2005 by Dr Stenning in his capacity as independent medical examiner. He provided reports dated 15 April 2005[30]. Although Mr Krajewski’s presenting symptoms at that time included “neck pain”, Dr Stenning’s reporting predominantly canvasses the injury Mr Krajewski sustained to his left shoulder in 1992, the injury Mr Krajewski sustained to his lumbar spine in 1993 and the injury Mr Krajewski sustained to his left knee in 2004. Dr Stenning provided opinion Mr Krajewski’s employment with Otis was the substantial contributing factor to these injuries.
Dr Nash
[30] Reply at page 54.
Mr Krajewski was assessed on 8 July 2005 by Dr Nash in his capacity as independent medical examiner. Dr Nash provided a report dated 5 September 2005[31] in which he predominantly canvassed the injury Mr Krajewski sustained to both shoulders, left knee and lumbar spine. Dr Nash relevantly said at that time:
“There is little doubt that his employment with Otis over a long period has been the significant factor in the causation of his disabilities.”
[31] Reply at page 33.
Relevant to his work status, while Dr Nash noted Mr Krajewski was working his normal duties, he queried whether this was appropriate and provided opinion Mr Krajewski was fit for light work only. He cautioned:
“The prognosis long terms is uncertain because of the multiplicity of his injuries, if he takes appropriate care and appropriate duties he should be able continue working until retirement age. His back, shoulders and to a lesser extent his knee will remain vulnerable indefinitely.”
Dr Giblin
Mr Krajewski was assessed on 11 July 2005 by Dr Giblin in his capacity as independent medical examiner. Dr Giblin provided reports dated 18 July 2005[32] in which he predominantly canvassed the injury Mr Krajewski sustained to his left shoulder in 1992, the injury
Mr Krajewski sustained to his lumbar spine in 1993 and 2001, and the injury Mr Krajewski sustained to his left knee in 2004. Relevant to prognosis Dr Giblin cautioned:“… His symptoms will persist indefinitely in terms of exacerbations and remissions and permanent physical restrictions.
There will be associated gradual deterioration on a post traumatic basis, and an increased susceptibility to further soft tissue injury of the affected anatomical areas.”
Dr Matalani
[32] Reply at page 44.
Mr Krajewski was assessed on 14 July 2005 by Dr Matalani in his capacity as independent medical examiner. Dr Matalani provided reports dated 14 July 2005[33]. Mr Krajewski’s presenting symptoms at that time included low back pain, left shoulder restriction and left knee pain. Although Mr Krajewski complained of intermittent numbness and pins and needles in the left hand and arm, he denied symptoms in his neck. Following clinical examination and review of the diagnostic imaging made available to him, Dr Matalani provided diagnosis which included comment that “[H]his neck is currently asymptomatic”.
Dr Matalani considered Mr Krajewski fit for only suitable duties and considered prognosis to be guarded.[33] Reply at page 65.
Dr Mastroianni
Mr Krajewski was assessed on 6 October 2005 by Dr Mastroianni in his capacity as independent medical examiner. He provided a report dated 6 October 2005[34] in which he predominantly canvassed the injuries sustained by Mr Krajewski to his left shoulder in 1992 and lumbar spine in 1993. He described Mr Krajewski as undertaking his pre-injury duties and considered prognosis as “favourable” with no significant change over the years as regards the condition Mr Krajewski suffered in his left shoulder and lumbar spine.
Dr Silver
[34] Reply at page 27.
Mr Krajewski was assessed by Dr Silver in his capacity as injury management consultant on 13 May 2009. Dr Silver provided a report dated 14 May 2009[35]. Mr Krajewski presented with complaint that included both low back pain and right scapula pain, which “he is confident that is referred pain from his neck”. Mr Krajewski had undergone an MRI scan of his cervical spine the day before and had been referred for nerve conduction studies in association with his cervical spine pathology which he was to attend in June 2009 (with approval of the investigations by the workers compensation insurer). Dr Silver described Mr Krajewski as suffering “widespread degenerative disease” with his “current symptom complex relating to an, a yet, unclaimed cervical problem”.
[35] ARD at page 160.
At the time of assessment Dr Silver said he felt Mr Krajewski’s:
“long term future, working as a technician, may well be limited, but after speaking with the employer, reassurance was provided that he could be redeployed into a mixture and clerical and supervisory work, or at least semi-sedentary supervisory activities.”
Dr Wallace
Mr Krajewski was re-assessed on 15 July 2021 by Dr Wallace in his capacity as independent medical examiner. He had initially been assessed on 23 February 2010. Dr Wallace provided reports dated 2 March 2010[36] and 20 July 2021[37].
[36] Reply at page 12.
[37] Reply at page 1.
While in his report following initial assessment Dr Wallace predominantly canvassed injury sustained by Mr Krajewski to his lumbar spine in the workplace incident occurring on 13 February 2009, in response to specific questioning about his diagnosis of cervical spondylosis and asymptomatic cord compression, Dr Wallace said:
“Mr Krajewski’s cervical spinal condition is due to pre-existing multilevel degenerative cervical spondylosis and spinal canal stenosis which is constitutional in origin, age-related and not work-related.”
In his subsequent report following more recent re-assessment, Dr Wallace noted
Mr Krajewski had been employed by Otis as an elevator mechanic since 1965 working on a fulltime basis and undertaking installation work “which involved carrying heavy equipment and tools for the repair of elevators”. He noted too that following surgical treatment of his left shoulder in 1993, Mr Krajewski only carried out maintenance work and as regards his cervical spine condition there was “no history of specific injury”.Following clinical examination and review of the diagnostic imaging made available to him, Dr Wallace provided diagnosis in the following terms:
“28 August 2020 (deemed date of injury)
1. Multilevel degenerative cervical spondylosis – non work-related.
2. Rotator cuff tear left shoulder.
3. Musculoligamentous strain lumbar spine
4. Aggravation of pre-existing degenerative lumbar spondylosis and lumbar spinal canal stenosis.
5. Medial meniscal tear left knee.”
Relevant to the issue of causation, while Dr Wallace accepted the injuries Mr Krajewski had sustained to his left shoulder, lumbar spine and left knee resulted from the nature and conditions of his employment with Otis, he did not accept the nature and conditions of
Mr Krajewski’s employment with Otis was consistent with “the cause of any significant cervical spinal pathology”. He said of Mr Karjewski’s cervical spine condition:“Mr Krajewski is suffering from multilevel degenerative cervical spondylosis which is constitutional in origin and unrelated to his employment. He would have noted the onset of cervical spine symptoms about the same time or same stage of his life if he had not been at work or employed by Otis Elevator Co Pty Limited. His employment with Otis Elevator Pty Limited is not a substantial contributing factor to any current cervical spinal condition.”
Relevant to the issue of whether the surgical treatment Mr Krajewski came to under the care of Dr Al Kahawaja, Dr Wallace merely said:
“Mr Krajewski’s cervical spine surgery was not reasonably necessary as a result of any work-related condition at his cervical spine as his cervical spine condition was due to age-related degenerative cervical spondylosis which is unrelated to his employment.”
Associate Professor Fernside
Mr Krajewski was assessed on 4 June 2020 by A/Prof Fernside in his capacity as independent medical examiner. A/Prof Fernside provided a report dated 6 April 2020[38]. As a neurosurgeon A/Prof Fernside confined his assessment to the injuries Mr Krajewski sustained to his lumbar spine and cervical spine. A/Prof Fernside noted Mr Krajewski was employed by Otis as an elevator mechanic for many years, having commenced with Otis as an apprentice in 1965. Relevant to his lumbar spine, A/Prof Fernside noted two specific workplace incidents occurring on 16 June 1993 and 13 February 2009 when Mr Krajewski suffered injury and noted the fact Mr Krajewski had ultimately come to surgical treatment on 3 November 2010 under the care of Dr New. Relevant to his cervical spine, A/Prof Fernside noted that following referral by Dr New, Mr Krajewski came under the care of Dr Farey on or about 29 July 2009 and while no surgical treatment was recommended at that time Dr Farey considered “regular review was appropriate”. Mr Krajewski was reported to have remained asymptomatic until March 2018, with Mr Krajewski then being referred to Dr Al Khawaja and coming to surgical treatment under his care on 1 July 2018, 17 July 2018 and 9 December 2018.
[38] ARD at page 20.
Associate Professor Fernside acknowledged Mr Krajewski’s work duties with Otis were heavy. He acknowledged too that in the early years, his work was “manual”. He said of
Mr Krajewski’s work duties:“For example, when maintaining a building and lift cab structure, four workers would lift the roof of the cab in order to bolt it to the walls. The roof weighed around 100kg and Mr Krajewski and his colleagues would often rest the roof on their heads while placing it. He also operated and maintained generators which powered the lifts and required replacing. Often, these weighed around 140kg and would need to be carried up and down the flights of stairs. For example, if he was in a unit block with one elevator, he would need to carry the generator up 20 or so flights of stairs (and downwards) initially, these were transported with the aid of leather belts into which the generator could hook. In the late 1980s, electric winches were introduced which eased the burden. He told me about the installation of counterweights. To install them, Mr Krajewski needed to stand on top of the elevator cab and insert the weights into channels and this was generally working in a confined space. Each elevator used “T rails” the rails on which the left [sic] ran. There were four of these in any shaft, two for the elevator and two for the counterweight an these were generally lifted manually using a block and tackle system, again very heavy work. The elevators needed to be tested after maintenance had been completed and a full load of around 1,000 kg was required to load the cage. Test weights were inserted, each weight weighing around 25 kg and these would be carried into the lift itself, stacked and the tests then performed. The weights would then need to be removed. This practice was manual until around 2000 when trolleys were utilised. Mr Krajewski said that he was, on a daily basis, performing this heavy lifting manoeuvring pulling and pushing chores generally in confined spaces. He often worked with his arms at or above shoulder height, often under full loading.”
Following clinical examination and review of the diagnostic imaging and medical information made available to him A/Prof Fernside said:
“On the background of a long work history with a great deal of manual labour as an elevator mechanic, Leon Krajewski developed cervical and lumbar spondylosis each of which required surgical treatment.”
Relevant to the issue of causation, A/Prof Fernside provided opinion in the following terms:
“For the lumbar spine, Mr Krajewski sustained injuries to his low back on 16/6/93 and 13/2/09. Following the second incident, he came under the care of Dr New and required a decompressive lumbar laminectomy to good effect. Although there was significant lumbar spondylosis when he was seen by Dr New, the nature and conditions of his work since 1965 was the main contributing factor to his low back injury.
For the neck, the nature and conditions of his work are sufficient to be satisfied that on the balance of probability, his employment with Otis Elevators was the main contributing factor to the development of cervical myelopathy, even occurring some years after he ceased work.”
As regards this development of cervical myelopathy, A/Prof Fernside explained that while cervical myelopathy was present when Mr Krajewski consulted with Dr New in 2009 and
Dr Farey in 2010 the disease was asymptomatic and did not require surgical treatment. He explained further:“Even though Mr Krajewski ceased work with Otis Elevators on 13/9/11, his cervical myelopathy developed of gradual onset becoming symptomatic in early 2018 requiring surgery from Dr Al Khawaja. Although not seen, the early neuroradiological investigations of his cervical spine are indicative of severe cervical spondylosis at that time, with myelomalacia (Dr Farey to Dr New, 25/6/09)”.
Relevant to the issue of treatment A/Prof Fernside said:
“Treatment to date both for his neck and low back are reasonably necessary and were required as a consequence of the injury to his lumbar spine on 13/2/09 as well as the nature and conditions of his work and for the cervical spine, the nature and conditions of his work over the years.”
Dr Pillemer
Mr Krajewski was assessed by Dr Pillemer on 30 June 2020 in his capacity as independent medical examiner. Dr Pillemer provided a report dated 30 June 2020[39] in which he described Mr Krajewski as “a remarkably uncomplaining gentleman”. Dr Pillemer also provided a further report dated 7 July 2020[40].
[39] ARD at page 33.
[40] ARD at page 42.
Dr Pillemer noted Mr Krajewski had been employed by Otis on a full time basis for some 46 years with his work having been “extremely heavy in the early days where there was no electrical lifting equipment and the work involved a lot of heavy carrying and lifting”.
Dr Pillemer noted the various injuries sustained by Mr Krajewski to his lumbar spine, left shoulder and left knee in the course of his employment with Otis and also noted Mr Krajewski did not recall having sustained injury to his cervical spine in the course of his employment with Otis.Following clinical examination and review of the diagnostic imaging made available to him
Dr Pillemer concluded Mr Krajewski had sustained injuries to his lumbar spine, left shoulder and left knee “due to the nature and conditions of his employment” and also accepted the condition Mr Krajewski suffered in his cervical spine had been aggravated by the nature and conditions of his employment, which he said “would have made the need for surgery to have come on earlier than might otherwise have been the case”. Dr Pillemer subsequently clarified Mr Krajewski’s employment with Otis was “the main contributing factor to his injuries and the aggravation or acceleration of his injuries” and the various surgical treatments he had come to “were reasonably necessary as a result of his injuries”.
Submissions
Both counsel made oral submissions which I have considered. A copy of the recording of counsels’ submissions is available to the parties. I am grateful to counsel for the assistance in navigating the evidence of relevance in these proceedings.
Determination
While in making his claim for compensation payable under the 1987 Act Mr Krajewski relevantly alleged the “nature and conditions” of his employment with Otis as an elevator mechanic over a period of 46 years resulted in injury in the nature of a disease injury to his cervical spine, lumbar spine, left shoulder and left knee, it must be remembered that in the decision of Toplis v Coles Group[41] Deputy President Roche made it clear the term “nature and conditions” is not a term used in the New South Wales workers compensation legislation and said:
“the general reference to the parties and the Arbitrator to a ‘nature and conditions’ injury was unhelpful.”
[41] [2009] NSWWCCPD 70.
However, it must also be remembered that Neilson J had earlier said in Mirkivoic v Davids Holdings PL[42]:
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’.
It is used in this place [the then Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, eg repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity.
Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within s 15 of the Act (where pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within s 16.”
[42] (1995) 11 NSWCCR 656.
While it may be there is admonishment for the use of the term ‘nature and conditions of employment’ as a means to abbreviate the circumstances of injury alleged by an injured worker, it is a fact, as acknowledged by Neilson J above and the Court of Appeal on occasion[43], that the expression is commonly used in the New South Wales workers compensation area of law.
[43] Switzerland Insurance WC (NSW) Ltd v Burley [1996] NSWCA 512; Wyong Shire Council v Paterson [2005] NSWCA 74.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury, which means a disease that is contracted by a worker in the course of employment and also the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease but only if the employment was the main contributing factor to contraction or the aggravation, acceleration, exacerbation or deterioration the disease. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[44] with comment that the test of “main contributing factor” is one of causation that involved consideration of the evidence overall.
[44] [2020] NSWWCCPD 9.
Otis disputes Mr Krajewski sustained injury to his cervical spine, lumbar spine, left shoulder and left knee as a result of the nature and conditions of his employment with Otis, and
Mr Krajewski has the onus of proving he sustained injury to his cervical spine, lumbar spine, left shoulder and left knee as a result of the nature and conditions of his employment with Otis and that his employment with Otis was the main contributing factor to such injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[45] McDougall J stated:“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[45] [2008] NSWCA 246 (Nguyen).
Relevant to this issue of causation of the injuries Mr Krajewski has sustained to his cervical spine, lumbar spine, left shoulder and left knee, in Kooragang v Cement Pty Ltd v Bates[46] Kirby J said:
“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 case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[46] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Mr Krajewski said he commenced working with Otis as an apprentice in February 1965 and continued working with Otis as a “lift mechanic” until September 2011 when his employment was terminated “on medical grounds because the prognosis for my injuries in the foreseeable future was not good”. While it is accepted Mr Krajewski sustained injury to his lumbar spine, left shoulder and left knee resulting from specific incidents occurring in the course of his employment with Otis, it is disputed he sustained injuries to his cervical spine, lumbar spine, left shoulder and left knee resulting from the nature and conditions of his employment with Otis.
It is evident Mr Krajewski has sustained injury to his cervical spine, lumbar spine, left shoulder and left knee, and over time he has been treated by a number of specialists for those injuries and he also been assessed by a number of independent medical examiners in relation to those injuries. In recent times Mr Krajewski has been assessed by A/Prof Fernside and Dr Pillemer. In recent times he has also been re-assessed by Dr Wallace.
A/Prof Fernside, Dr Pillemer and Dr Wallace are independent medical examiners.When assessed by A/Prof Fernside on 4 June 2020, A/Prof Fernside restricted his assessment to injury to the cervical spine and lumbar spine and provided opinion the nature and conditions of Mr Krajewski’s employment with Otis was the main contributing factor to injury. When assessed by Dr Pillemer on 30 June 2020, Dr Pillemer provided opinion the nature and conditions of Mr Krajewski’s employment with Otis was the main contributing factor to the injury Mr Krajewski had sustained to his lumbar spine, cervical spine, left shoulder and left knee. When assessed by Dr Wallace on 15 July 2021, while Dr Wallace only accepted the injury Mr Krajewski had sustained to his lumbar spine, left shoulder and left knee resulted from the nature and conditions of his employment with Otis, I prefer the opinions of A/Prof Fernside and Dr Pillemer as regards the cause of the injury Mr Krajewski sustained to his cervical spine as such opinion is also supported by Mr Krajewski’s treating neurosurgeon, Dr Al Khawaja, under whose surgical care Mr Krajewski came in 2018.
It is evident from the medical information available that the injury Mr Krajewski has sustained to his cervical spine is injury in the nature of a disease injury. It is also evident from the medical information available that the injury Mr Krajewski sustained to his lumbar spine is injury in the nature of a disease injury. Relevant to the injury Mr Krajewski sustained to his left shoulder and left knee, Dr Wallace has usefully provided diagnosis of in terms of a rotator cuff tear and a medial meniscal tear. It is clear from the diagnostic imaging available (and at the time of writing his most recent report Dr Wallace had available to him diagnostic imaging relevant to Mr Krajewski’s left shoulder) the injury Mr Krajewski has sustained to his left shoulder is in the nature of a disease injury. It is also clear from medical information available that Mr Krajewski came to left knee arthroscopy in 2004, with Dr Nash accepting in 2005 that Mr Krajewski’s knee would “remain vulnerable indefinitely” and Dr Stenning cautioning the same year that Mr Krajewski would “eventually develop severe osteoarthritis” in his left knee. On the evidence, I accept the injury Mr Krajewski has sustained in his cervical spine, lumbar spine, left shoulder and left knee is injury in the nature of a disease injury.
Following a review of the evidence as a whole and careful consideration of counsels’ submissions, I accept too that Mr Krajewski’s employment with Otis was the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury he has sustained in his cervical spine, lumbar spine, left shoulder and left knee.
For the reasons discussed above I accept Mr Krajewski has discharged the onus required of him. I accept Mr Krajewski has sustained injury to his cervical spine, lumbar spine, left shoulder and left knee in the nature of a disease injury with his employment with Otis being the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury.
Date of injury
While I have determined Mr Krajewski sustained injury to his cervical spine, lumbar spine, left shoulder and left knee in the course of his employment with Otis with his employment with Otis being the main contributing factor to injury in the nature of a disease injury, Otis disputes the alleged deemed date of injury of 28 August 2020.
Sections 15 and 16 of the 1987 Act are primarily concerned with the setting of the date of injury in the nature of a disease injury. Sections 15 and 16 of the 1987 Act identify the date of injury as (a) date or death or incapacity; or (b) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury.
The authorities establish there may be more than one deemed date of injury[47] and relevant to Mr Krajewski’s claim for permanent impairment compensation Mr Stockley drew my attention to President Keating’s decision in Westpac Banking Corporation v Hungerford[48] which I am bound to follow. As Mr Krajewski has made no claim for weekly compensation resulting from injury sustained to his cervical spine, lumbar spine, left shoulder and left knee resulting from the nature and conditions of his employment with Otis and there is no claim for weekly compensation before me to determine, I am of the view sections 15 and 16 of the 1987 Act fix the deemed date of injury for Mr Krajewski’s current claim for compensation at 28 August 2020, being the date of his claim for permanent impairment compensation resulting from injury sustained to his cervical spine, lumbar spine, left shoulder and left knee resulting from the nature and conditions of his employment with Otis.
[47] Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd and Anor (1998) 45NSW LR 606; Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246; P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49NSW LR 481; Stone v Standard Bros Launch Services Pty Limited (2004) NSW CA 277;
[48] [2018] NSWWCCPD 50.
Treatment
As I have determined Mr Krajewski sustained injury to his cervical spine, lumbar spine, left shoulder and left knee in the course of his employment with Otis, with his employment being the main contributing factor to injury in the nature of a disease injury, it follows Mr Krajewski has an entitlement to medical and related treatment payable under s 60 of the 1987 Act for those injuries.
Specific to the cervical spine surgical treatment Mr Krajewski came to under the care of
Dr Al Khawaja it is instructive to note an approach taken by Mason JA in his dissenting judgement in Migge v Wormald Brothers Industry Limited[49] at page 44:“In cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.”
[49] 2 NSWLR 20.
This approach by Mason JA has the approval of the High Court of Australia and the NSW Court of Appeal, at least, in respect of the meaning of “results from” under the 1987 Act. As noted in Kooragang the court determined that the phrase “results from” requires a common sense evaluation of the causal chain by paying due regard to the question posed by the 1987 Act, with the question posed in this particular matter being whether the disputed need for cervical spine surgical treatment “results from” the injury Mr Krajewski sustained to his cervical spine in the course of his employment with Otis. It is also instructive to note comment by Deputy President Roche in Murphy v Allity[50] Management Services Pty Ltd [51]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA at [25] – [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ of the injury’ (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[50] R AALD at page 18.
[51] [2015] NSWWCCPD 49.
Section 60 of the 1987 Act provides:
“60 (1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[52]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[52] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Ltd[53], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(c) the appropriateness of the particular treatment;
(d) the availability of alternative treatment, and its potential effectiveness;
(e) the cost of the treatment;
(f) the actual or potential effectiveness of the treatment, and
(g) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
[53] [2014] NSWWCCPD 72 (Diab).
Mr Krajewski described coming under the surgical care of Dr Al Khawaja in 2018 after experiencing what appear to be quite distressing symptoms. It is important to note some eight years earlier Dr New had considered Mr Krajewski “may become a candidate for surgical intervention, particularly of his cervical spine”. It is also important to note while
Dr Farey reported at about the same time he did not recommend cervical surgical treatment “at present”, he cautioned Mr Krajewski was at risk of developing symptoms of spinal cord compression, which Mr Krajewski evidently did.On review by Dr Al Khawaja on 18 May 2018, Dr Al Khawaja described Mr Krajewski as experiencing “significantly limited neck movements to all directions” and symptoms in his right arm and right leg. Mr Krajewski came to two stage surgical treatment under
Dr Al Khawaja’s care, with what Dr Al Khawaja described as significant improvement (although unfortunately Mr Krajewski’s recovery was complicated with the development of wound infection). Dr Al Khawaja considered the surgical treatment Mr Krajewski came to as “necessary” in that “he would be in a wheelchair if he did not do it”.Associate Professor Fernside has provided opinion the surgical treatment Mr Krajewski came to under the care of Dr Al Khawaja was reasonably necessary as a result of the injury he sustained to his cervical spine as a result of the nature and conditions of his employment with Otis. Dr Pillemer has provided opinion the surgical treatment Mr Krajewski came to under the care of Dr Al Khawaja was reasonably necessary treatment for the injury he sustained to his cervical spine as a result of the nature and conditions with Otis. He said too the nature and conditions of Mr Krajewski’s employment with Otis “would have made the need for surgery to come on earlier than might otherwise have been the case”. While
Dr Wallace provided opinion about whether the surgical treatment Dr Krajewski came to under the care of Dr Al Khawaja was reasonably necessary treatment, his opinion is couched in opinion Mr Krajewski’s cervical spine injury did not result from his employment with Otis and accordingly provided no opinion regarding whether the surgical treatment was reasonably necessary treatment per se.Following review of the evidence as a whole and following careful consideration of counsels’ submissions, having particular regard to the opinions provided Dr Al Khawaja,
A/Prof Fernside and Dr Pillemer I am of the view the surgical treatment Mr Krajewski came to under the care of Dr Al Khawaja was reasonably necessary treatment for the injury he sustained to his cervical spine in the course of his employment with Otis.For reasons discussed above I accept the cervical spine surgical treatment Mr Krajewski came to under the care of Dr Al Khawaja was reasonably necessary treatment for the injury he sustained to his cervical spine in the course of his employment with Otis.
Permanent impairment
As I have determined Mr Krajewski sustained injury to his cervical spine, lumbar spine, left shoulder and left knee in the course of his employment with Otis with a deemed date of injury of 28 August 2020 it is appropriate Mr Krajewski’s claim for permanent impairment compensation resulting from injury to his cervical spine, lumbar spine, left upper extremity (left shoulder), left lower extremity (left knee) and scarring with a deemed date of injury of 28 August 2020 be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment .
The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents (with the report dated 31 March 2021 prepared by A/Prof Brew removed), and
(b) Reply and attached documents.
SUMMARY
Mr Krajewski has sustained injury in the nature of a disease injury to his cervical spine, lumbar spine, left shoulder and left knee in the course of his employment with Otis with his employment being the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury he has sustained.
The deemed date of injury is 28 August 2020, being the date of Mr Krajewski’s claim for permanent impairment compensation resulting from injury in the nature of a disease injury sustained to his cervical spine, lumbar spine, left shoulder and left knee in the course of his employment with Otis.
Mr Krajewski has an entitlement to medical and related treatment payable under s 60 of the 1987 Act for the injury in the nature of a disease injury he has sustained to his cervical spine, lumbar spine, left shoulder and left knee in the course of his employment with Otis. The cervical spine surgical treatment Mr Krajewski came to under the care of Dr Al Khawaja was reasonably necessary treatment for the injury in the nature of a disease injury he sustained to his neck in the course of his employment with Otis.
It is appropriate Mr Krajewski’s claim for permanent impairment compensation resulting from injury in the nature of a disease injury which he has sustained to his cervical spine, lumbar spine, left shoulder, left knee and scarring in the course of his employment with Otis with a deemed date of injury of 28 August 2020 be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents (with the report dated 31 March 2021 prepared by A/Prof Brew removed), and
(b) Reply and attached documents.
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