Lang v TAFE NSW
[2024] NSWPIC 469
•26 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lang v TAFE NSW [2024] NSWPIC 469 |
| APPLICANT: | Cameron Lang |
| RESPONDENT: | TAFE NSW |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 26 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4(b)(ii) and 60; dispute in relation to injury to the left wrist; claim for medical expenses; fusion to the left wrist; respondent denied liability on the basis that the applicant had well-established pre-existing degenerative changes in the wrist for which fusion was forecast prior to injury; applicant claimed aggravation of left wrist injury in motor vehicle accident in the course of his employment; Held – applicant sustained ‘injury’ by way of aggravation in the course of his employment; respondent to pay the costs of fusion surgery. |
DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained ‘injury’ to his left wrist in the course of his employment 7 December 2023. 2. The applicant’s employment has materially contributed to the need for fusion surgery. 3. The respondent is to pay the applicant’s reasonably necessary medical expenses with respect to the proposed left wrist fusion, and associated expenses, pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
In a claim form dated 1 February 2024, Cameron Lang (the applicant) notified his employer, TAFE NSW (the respondent) that he was involved in a motor vehicle accident on 7 December 2023 and suffered whiplash and damage to his left wrist.
Following assessment by the respondent’s insurer, liability was denied after it made findings applying the Workers Compensation Act (1987) (the 1987 Act) that the
· Injury occurred on a journey unrelated to employment;[1]
· the injury did not arise out of any employment,[2] and
· employment was not a substantial contributing factor.[3]
[1] Section 10 of the 1987 Act.
[2] Section 4 of the 1987 Act.
[3] Section 9A of the 1987 Act.
The dispute prompted the filing of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) limited to a claim for surgical treatment, relevantly a left wrist proximal row carpectomy and fusion as recommended by Dr John Tawfik.
The matter underwent the usual case management pathway. At conciliation/arbitration the applicant was represented by Mr Stockley of counsel instructed by Mr Bonura. The respondent was represented by Ms Balendra of counsel instructed by Mr Tuxford. Ms Rodriguez was the insurer representative.
Conciliation was partly successful as the s10 defence was not pressed. Determination was sought on the issues relating to injury and treatment. In the course of decision making, I considered submissions by counsel, the ARD and Reply (and annexures) and the Application to Admit Late Documents filed by the respondent dated 13 August 2024, which primarily consisted of clinical notes produced under directions for production. No oral evidence was adduced.
Applicant’s evidence
In the statement dated 14 March 2024,[4] the applicant records the rear end collision resulting in his vehicle being written off and that he sustained injury to the neck and severe aggravation/exacerbation of prior symptoms to the left wrist.
[4] Folios 13-14 of the ARD.
In a supplementary statement dated 27 March 2023[5] the applicant recorded:
· he is left hand dominant, a carpenter by trade but now employed as a project director and manager;
· in July 2018 he injured his left wrist when skateboarding ultimately requiring carpal tunnel surgery and denervation in June 2019 but given significant pathology, his surgeon Dr Tawfik forecasted the need for a wrist fusion;
· symptoms in the left wrist continued to be managed conservatively but a flare in symptoms after the cessation of Panadol due to abnormal liver function tests prompted further presentation to Dr Tawfik in June 2023 when hand therapy was recommended, undertaken and produced symptom relief;
· prior to the accident on 7 December 2023, the applicant reported “I was successfully getting on with life without the need for wrist fusion at that time” but since the accident “I can no longer work with my hands, easily perform my work duties, nor can I partake in any sporting activities”;
· since the accident, pain is managed with Naprosyn SR 750 and Mersyndol and “pins and needles sensation and numbness in my left hand has returned worse than ever and I have lost all strength in my left thumb”, and
· neck pain is present, but symptoms in the wrist are a “daily and ongoing concern, including weekly physiotherapy” with Dr Tawfik now recommending wrist fusion.
[5] Folios 38-41 of the ARD.
Dr Vladamir Brodski
Serial WorkCover Medical certificates issued by Dr Vladimir Brodski; general practitioner record the diagnoses of “whiplash injury to neck. Exacerbation of left wrist osteoarthritis”. The management plan is recorded as oral analgesia, physiotherapy, and awaiting approval for left wrist surgery. Gradual upgrade in duties were certified with restrictions noted “not to use left hand. Light work with right hand”.’[6]
[6] Folios 68-73 of the ARD.
An MRI was ordered and undertaken on 10 January 2024 with the clinical notes indicating:
“…history of advanced degenerative change left recent exacerbation following motor car accident”[7]
[7] Folio 128 of the ARD.
Phill Hagon, physiotherapist
In the Allied Health Recovery request dated 2 February 2024,[8] Phill Hagon recorded a clinical assessment of “aggravation to scapholunate ligament disruption left wrist”. Clinical signs and symptoms were recorded as “swelling left radial aspect of wrist, weak grip 2/10, pain 10/10 constant at wrist, unable to weight bear or grip left wrist”… “known left wrist arthritis, appears to be significantly aggravated from bracing steering wheel in crash” is recorded. Treatment was aimed at restoring dominant left hand strength (if able), reduce swelling and prepare for fusion surgery is necessary.
[8] Folios 63-67 of the ARD.
David Tieppo, physiotherapist
Following assessment of the applicant on 25 July 2023[9] he recorded pain of 5/10 at rest and 10/10 with use; full pronosupination; grip strength was 45kg on the left with 8/10 pain with weight bearing wrist extension 17kg on the left and 44kg on the right.
[9] Folio 134 of the ARD.
Dr John Tawfik, treating hand surgeon
In a report prior to the accident dated 26 June 2023,[10] Dr Tawfik recorded that he undertook a left open carpal tunnel release and left wrist denervation procedure in August 2019. He trialled a period of regular Panadol which helped but since weaning off the medication, symptoms recurred. The doctor recorded the applicant was not keen for fusion and intended to continue with non operative management for as long as possible. Hand therapy was recommended.
[10] Folio 114 of the ARD.
Dr Tawfik reassessed the applicant on further referral from Dr Brodski dated 11 January 2024 wherein it was recorded:
“Mr Lang has history of left wrist fractures, surgery in the past.
His recent exacerbation is related to motorcar accident he sustained on 9/12/23 when he developed swelling over dorsum of wrist and soreness”[11]
[11] Folio127 of the ARD.
Reporting to the general practitioner on 1 February 2024, Dr Tawfik confirmed he first reviewed the applicant in 2019 to treat left wrist pain and radio scaphoid arthritis with conservative non operative means of splinting, hand therapy, corticosteroid injections and a wrist denervation procedure. In June 2023 he recorded symptoms were well controlled, not impacting on work or the ability to ride a motor bike and other recreational pursuits. At presentation on 1 February 2024 (three months after the accident), there was noted a significant exacerbation of pain in the left wrist with swelling and significant reduction in range of motion interfering with function with the left dominant hand, including difficulty with brushing his teeth, and gripping activities such as jars, doorknobs or taps.
Dr Tawfik recommended wrist fusion reporting
“…a significant exacerbation of symptoms in the left wrist following a recent car accident. There is much more swelling and pain and a restriction in range of motion compared to when I last saw him last year when the symptoms were much more manageable. Pain is interfering with function…”[12]
[12] Folio109 of the ARD.
Professor Gumley
Qualified by the applicant in a report dated 3 April 2024,[13] a history was taken of increased pain in the left wrist following the collision, which could no longer be managed by Panadol, as it was prior to the accident, but rather Mersyndol and Naprosyn and the use of a brace constantly since the accident.
[13] Folios 82-106 of the ARD.
As regards the mechanism of injury, Professor Gumley recorded a rear end collision where the applicant was “holding the steering wheel with his dominant left hand leading to impact across the already damaged radiocarpal joint”.
Professor Gumley opined symptoms were consistent with an injury producing an aggravation of a preexisting scapholunate advanced collapse with symptoms of pain, reduced motion and strength. He concluded previous symptoms had been magnified on a permanent basis and have not returned to baseline indicating an aggravation of a previously known condition.
The history of pre-accident fusion recommendation was recorded but he concluded the motor vehicle injury accelerated the need for left wrist surgery and left wrist arthrodesis was reasonably necessary treatment after assessing the radiology undertaken between 2018 and 2023.
Respondent’s evidence
Associate Professor Dr Miniter
Qualified by the respondent[14] and limited to a file review, Dr Miniter made the following findings relevantly (unedited):
“…An MRI scan of the wrist taken in January 2024 did not indicate any evidence of recent trauma. In my opinion, if one is to indicate that there has been significant energy transfer involved in the alleged injury in the motor vehicle accident, then the MRI scan at Lumus Imaging taken on 10 January 2024 would be expected to show some degree of bone oedema or other evidence of recent significant trauma. I quote the findings: ‘…No bone marrow oedema within the distal radius, ulnar head or carpal bones sufficient to suggest a fracture…’ It goes on, however, to state that there was a large effusion in the pre-styloid recess, and that there were marked abnormalities, longstanding, associated with a SLAC wrist. The important interpretation of this matter is that if there had been a severe injury such that there would be lasting exacerbation, then one would have expected some degree of bone oedema associated with the bones surrounding the wrist joint proper. This is absent, and in my opinion indicates that the force transfer through this wrist is unlikely to have been significant at the time of the motor vehicle accident.
Over the period of time that has passed and noting that he already had established osteoarthritis at the first occasion that Mr Lang was reviewed by Dr Tawfik, one would be of the opinion that Mr Lang’s wrist degenerative change has simply followed the normal path to further functional decline that occurs in matters such as this. I have quoted from the information that you have provided; the important of these pieces of information are the investigations. Indeed, I logged into Lumus Imaging to compare this investigation to that which was suggested in 2023 by Dr Tawfik, I could see no meaningful difference. One would have to conclude therefore that it is most unlikely that the injury which is said to have occurred on the way home from work in December 2023 is the cause of Mr Lang’s current presentation. It is much more likely that the matter itself is related purely to pre-existing problems. The information you have sent speaks for itself and I do not believe that it requires further elucidation.
My final comments relate to the specific nature of the investigations which were evident before Mr Lang was involved in the motor vehicle accident. The MRI scan of the left wrist taken on 10 July 2023, which is available at Lumus Imaging, has been reviewed by this observer. There is severe arthritic disease evident, and a large amount of synovitis is evident throughout the majority of his wrist and carpus. When one compares this to the MRI scan of his left wrist, this taken on 9 January 2024, there is no meaningful alteration between these two image sequences. In simple terms, the matter with which he presents is without doubt longstanding and pre-existing and not associated with the motor vehicle accident, in my opinion….
There is no evidence of aggravation caused by the workplace in an objective sense. I have quoted the documentation above and have independently and carefully reviewed the MRI scan of the wrist, both before and after the injury in question.
The prognosis after total wrist fusion and proximal row carpectomy is excellent. Mr Lang should do very well indeed from this surgery. His pain should be dealt with and even though he will be somewhat stiff, the stiffness is almost certainly in evidence. Most patients are particularly satisfied with such surgery.
I have reviewed the correspondence from A/Prof Gumley, and I must say that I am surprised that A/Prof Gumley, for whom I generally have a deal of respect, has not independently reviewed the MRI scans taken before and after the alleged incident. He has made the conclusion that Mr Lang has a long-term aggravation caused by the motor vehicle accident but he has not evaluated the imaging. Perhaps if A/Prof Gumley were given the opportunity to do so, he would be in a better position to look at this matter in a more objective sense.”
[14] Folios 68-74 and dated 13 June 2024.
Submissions
On behalf of the applicant, key submissions were:
(a) the applicant has been entirely transparent with his medical history. Certainly wrist fusion was suggested pre accident but the applicant had successfully managed symptoms since the skateboard accident in 2020 to 2023 with minimal impact on capacity albeit with activity modification.
(b) Following the motor vehicle accident the medical and statement evidence document significant deterioration, disturbing the pre accident status quo particularly with inability to grip, carry, increased pain and incapacity and avoidance of duties with his left dominant hand. The evidence easily establishes the injury in December 2023 to be the “main contributing factor” to the aggravation of that preexisting condition and accelerated/hastened the need for surgical intervention.
(c) Dr Miniter determined in the absence of a progression in pathology, the need for surgery was preexisting, although technically was deprived of any clinical assessment as assessment was limited to a file review only.
(d) There is medical consensus that fusion is the most appropriate treatment option as conservative measures have failed to alleviate the aggravation and return the applicant to his pre accident state and therefore such treatment is reasonably necessary.
(e) I was referred to the authorities of Federal Broom Co Pty Ltd v Semlitch[15] (Semlitch), Murphy v Allity Management Services Pty Ltd (Murphy),[16] Kooragang Cement Pty Ltd v Bates (Kooragang),[17] Diab v NRMA Ltd[18] (Diab) and Rose v Health Commission[19] (NSW) (Rose).
[15] [1954] HCA 34.
[16] [2015] NSWWCCPD 49.
[17] (1994) 10 NSW CCR 796.
[18] [2014] NSWWCCPD 72.
[19] (1986) 2 NSWCCR 32.
On behalf of the respondent, key submissions were:
(a) the need for fusion was forecast to treat pre accident pathology. Despite the applicant’s intention to defer surgery, it was imminent and inevitable regardless of the accident.
(b) Medical records show that the applicant had abnormal liver function from which it can be inferred that he relied extensively on analgesics to control his left wrist pain prior to the accident.
(c) The applicant continued with conservative treatments including hand therapy and the use of a brace prior to the accident and symptoms were continuing and significant.
APPLICATION OF THE LAW, FINDINGS AND REASONS
Injury is defined in s 4 of the 1987 Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing injury, key authorities establish:
(a) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological/physiological change: Castro v State Transit Authority (NSW),[20] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[21] “the word ‘injury’ refers to both the event and the pathology arising from it”.
(b) The issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[22] (Kooragang).
(c) The applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must be satisfied that the case has been proved on the balance of probabilities where I must feel an actual persuasion or comfortable satisfaction of the existence of a fact - Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).
[20] [2000] NSWCC 12; 19 NSWCCR 496.
[21] (2003) 25 NSWCCR 422, [429].
[22] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), at [463].
What does main contributing factor mean?
This critical term is not defined in the 1987 Act, but has been the subject of much authority which when summarised reveal the key principles are:
(a) the test of “main contributing factor” is one of causation which involves consideration of the evidence overall and further in a matter involving a disease injury, it is necessary that the employment be the main contributing factor to the aggravation and not to the underlying disease process as a whole (AV- AW).[23]
(b) The employment need only be the main contributing factor to the relevant aggravation etc and need not contribute to the causation or the pathology of the underlying disease itself (Rootsy), (Murray) (Hancock).[24]
(c) Moreover, for aggravation etc to be found it is not necessary for the employment to have caused actual worsening in the pathology of the disease itself (although this will often be the case); it will be sufficient if there has been an increase in symptoms and restrictions resulting from the disease (Semlitch).[25]
(d) Aggravation or exacerbation of a disease occurs where the experience of a disease by the patient is increased or intensified by an increase or intensifying of symptoms (Kelly).[26] On the other hand, it has been held that the mere manifestation of, or an increase in, symptoms in the course of employment will not necessarily constitute an aggravation injury if such symptoms are the ordinary consequence of the underlying condition (Beattie).[27]
[23] AV v AW [2020] NSWWCCPD 9
[24] Rootsey v Tiger Nominees Pty Ltd [2002] 23 NSWCCR 725, Murray v Shillingsworth [2006] NSWCA 367 and Rural Press Ltd v Hancock [2009] NSWWCCPD 160.
[25] Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626.
[26] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71.
[27] Commonwealth of Australia v Beattie [1981] 35 ALR 369 (Beattie) and Albury City Council v Gunton [2011] NSWWCCPD 68.
The above summary may appear at repetitive however each has its own nuances. Further, I emphasise the summary is not exhaustive.
Liability
The respondent maintained Dr Miniter’s opinion should be preferred. Whilst the analysis of imaging is sound, his wholesale focus on the lack of progression of pathology and conclusion this prevented a finding of ‘injury’ is in my view, one dimensional.
In short, Dr Miniter’s opinion is: no material change in radiological findings pre and post accident = no workplace aggravation = no liability. This conclusion fails to take into account the well-established authorities discussed in paragraph 25 above including the High Court which establish that it is unnecessary to demonstrate a worsening in the pathology of the disease itself, rather that there has been an increase in symptoms and restrictions resulting from the disease and that employment injury is the main cause of this (Semlitch and Kelly). I am not critical of Dr Minter for failing to take this into account. His speciality is medicine and not law. However, I am critical of his comment “there is no evidence of aggravation caused by the workplace in an objective sense”, as this statement ignores the contemporaneous entries of symptom increase from the treating doctor, specialist, physiotherapists and the applicant himself, such reports being acknowledged by him as part of his medical brief.
Dr Miniter’s criticism of Professor Gumley’s assessment suggesting his view was “uninformed due to failure to examine the radiological findings” is without merit and inaccurate. Careful review of Professor Gumley’s report confirms review and assessment of the radiological evidence.
I note the submission that the applicant’s liver function tests demonstrate excessive use of analgesic medication prior to the accident, reinforcing symptoms were significant. This submission is hypothetical in the absence of a medical opinion identifying the cause of liver function abnormality and its relationship to analgesic use.
Overall, I find that the applicant has established, on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction (Nguyen) that his employment injury was the main contributing factor to the aggravation of his disease condition satisfying s 4(b)(i) of the 1987 Act because:
(a) whilst not totally asymptomatic prior to the motor vehicle accident, symptoms in the left wrist were managed conservatively and the applicant was able to perform his full pre-injury duties and activities of daily living albeit with care between 2020 and the motor vehicle accident in December 2023;
(b) the applicant and his treating specialist were comfortable with deferring wrist fusion for as long as possible given that conservative interventions allowed a satisfactory level of function and symptom flares, such as that demonstrated in July 2023, were conservatively managed with hand therapy;
(c) there is a well-documented deterioration in symptoms following the motor vehicle accident to the left hand with symptoms of increased pain, swelling and lack of grip strength, matters that were well controlled prior to the accident but which then necessitated higher doses of analgesic and anti-inflammatory medication, necessitating further radiological review and specialist assessment and incapacity from work, and
(d) whilst I accept that the employment injury was not the cause of the condition/disease, I find considering the whole of the evidence that there has been a significant and severe increase (aggravation/exacerbation) of symptoms as a result of the workplace incident which has accelerated the need for surgical intervention. The respondent correctly points out that fusion was recommended many years ago, but I cannot ignore the applicant was successful in deferring such surgery for over four years with conservative management, until the subject accident.
For these reasons, I find that the applicant has suffered ‘injury’ within the meaning of the 1987 Act and further that his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
Treatment
Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
In this case there is medical consensus fusion surgery is appropriate however, this of itself is insufficient to establish indemnity.
The authorities on the interpretation of this section are overwhelming although I have identified three key principles relating to the assessment of such claims summarised as follows (but again these are not exhaustive):
(a) firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is “reasonably necessary” (Nguyen).[28]
[28] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.
(b) Secondly, whether treatment is “reasonably necessary”[29] (Rose) is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations such as:
(i)is it better that the worker have the treatment or not?(in the sense that there are reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment) (Diab);[30]
(ii)the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
(c) Thirdly, the need for treatment must be “the result of an injury”. The authorities establish assessment requires:
(i)a common sense evaluation of the causal chain the treatment is reasonably necessary “as a result of the injury” (Kooragang);[31]
(ii)the expression “results of”, is a question of fact, and it is unnecessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and it is sufficient to establish only that the injury “materially contributed” to that need (Murphy); [32]
(iii)the worker establish “the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need (the fundamental principle that employers must take their workers as they find them” and that “a condition can have multiple causes”, these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question”) (Schokman).[33]
[29] Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233
[30] Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72.
[31] See Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452.
[32] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
[33] Per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman).
The medical consensus in this case narrows the dispute and confirms the treatment proposed is likely to be symptomatically effective, curative, cost effective and accepted by the medical profession and so meets the baseline requirements ‘reasonably necessary’ summarised above.
In my assessment of liability above, I concluded the disease was significantly aggravated by the injury. I further find this has resulted in the current requirement for surgical intervention, a proposal which was otherwise dormant pre accident/injury and kept in abeyance by virtue of conservative treatments for a period of almost four years, reactivated only by virtue of the aggravation arising from this injury. I therefore find the injury did materially contribute to the need for the provision of surgical intervention and further it is the material cause for the treatment and so am satisfied that the need for treatment is the result of the injury.
I acknowledge the respondent’s submissions that the fusion was proposed pre injury and imminent however, the work injury does not need to be the only or even a substantial cause of the need for the treatment before the cost is recoverable (Murphy). For the reasons above, I find the applicant has established on the balance of probabilities, (Nguyen) that the injury materially contributed to the need for the treatment based with reference to the common sense test of causation (Kooragang) such that fusion surgery is reasonably necessary (Rose) and (Diab) as a result of the injury.
SUMMARY
Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.
0
12
0