Lashbrook v Corestaff NSW Pty Ltd
[2023] NSWPIC 112
•17 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Lashbrook v Corestaff NSW Pty Ltd [2023] NSWPIC 112 |
| APPLICANT: | Jack Lashbrook |
| RESPONDENT: | Corestaff NSW Pty Ltd |
| Member: | Karen Garner |
| DATE OF DECISION: | 17 March 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted injury to his eyes, right hip and post-traumatic stress disorder; whether the applicant sustained injury to his cervical spine, lumbar spine and right shoulder pursuant to sections 4(a) and 9A; Held – applicant sustained injury to his cervical spine, lumbar spine and right shoulder arising out of his employment pursuant to sections 4(a) and 9A; matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for assessment of permanent impairment. |
| determinations made: | The Commission determines: 1. The applicant sustained injury to his lumbar spine, cervical spine and right shoulder on 2. The matter is remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment in respect of the cervical spine, lumbar spine, right upper extremity (shoulder), right lower extremity (hip) and visual system in respect of injury on 26 March 2020. The Commission orders: 3. The matter is remitted to the President to be referred to a Medical Assessor for assessment as follows: Date of injury: 26 March 2020. Body parts: cervical spine; lumbar spine; right upper extremity (shoulder); right lower extremity (hip), and visual system. Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and all attachments; (b) Reply and all attachments, and (c) Application to Admit Late Documents dated 18 January 2023 and all attachments. |
STATEMENT OF REASONS
BACKGROUND
Jack Lashbrook (the applicant) is 29 years old and was employed by Corestaff NSW Pty Ltd (the respondent) as an electrician.
The applicant alleges that he sustained injury to his lumbar spine, cervical spine, right shoulder, both eyes (ARC flash), right hip and psychological/psychiatric injury (post-traumatic stress disorder) from an electrical explosion whilst he was working on 26 March 2020.
The applicant completed a Worker’s Injury Claim Form dated 13 October 2020.[1]
[1] Reply, page 13.
By a claim dated 30 June 2022,[2] the applicant made a claim for permanent impairment lump sum compensation (permanent impairment compensation) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 21% whole person impairment (WPI) in respect of injury to the “Spine, Right upper limb and eyes” with a date of injury of 26 March 2020. The claim attached reports of Dr Steiner dated 12 April 2022 and Dr Bodel dated 20 June 2022.
[2] ARD, page 8.
By notice dated 25 October 2022, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer:[3]
(a) stated that it accepted liability in respect of arc flash – both eyes, right hip strain with bruising and post-traumatic stress disorder;
(b) disputed liability for permanent impairment compensation in respect of alleged injuries to the applicant’s lumbar spine, cervical spine and right shoulder (the disputed injuries) on the grounds that:
(i)the applicant failed to comply with the requirements of ss 254 and 261 of the 1998 Act;
(ii)it disputed that the applicant sustained the disputed injuries on
26 March 2020 out of or in the course of his employment, to which his employment was a substantial contributing factor (as required by ss 4 and 9A of the 1987 Act), and(iii)it disputed that the applicant met the threshold imposed by s 66(1) of the 1987 Act.
[3] ARD, page 11.
By Application to Resolve a Dispute (ARD) registered in the Personal Injury Commission (the Commission) on 6 December 2022, the applicant claims permanent impairment compensation pursuant to s 66 of the 1987 Act for 21% WPI totalling $55,600 in respect of the applicant’s cervical spine, lumbar spine, right upper extremity, visual system and right lower extremity, with a date of injury of 26 March 2020.
On 10 January 2023, the respondent lodged in the Commission a Reply to ARD (Reply).
ISSUES FOR DETERMINATION
The respondent accepted certain injury on 26 March 2020, being: arc flash – both eyes, right hip strain with bruising, and post-traumatic stress disorder.
By email correspondence to the Commission on or about 15 March 2023, the respondent’s solicitor confirmed that the respondent no longer presses the dispute in relation to whether the applicant failed to comply with the requirements of ss 254 and 261 of the 1998 Act.
The following issues remain in dispute:
(a) in relation to the disputed injuries, being injuries to the applicant’s lumbar spine, cervical spine and right shoulder, whether the applicant sustained the disputed injuries on 26 March 2020 out of or in the course of his employment, to which his employment was a substantial contributing factor (as required by ss 4 and 9A of the 1987 Act), and
(b) whether the applicant met the threshold imposed by s 66(1) of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At a hearing on 16 February 2023, the applicant was represented by Mr Dan Steiner, counsel, instructed by Mr Lachlan Main of Main Lawyers. The respondent was represented by Mr Stuart Grant, counsel, instructed by Ms Kaat Faapito of Hall & Wilcox Lawyers.
I am satisfied that the parties to the dispute understand the nature of the ARD and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD with attached documents;
(b) Reply with attached documents, and
(c) Application to Admit Late Documents dated 18 January 2023 and attachments (lodged by the insurer), which was admitted into evidence by consent.
Oral evidence
No party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant completed a written statement on 26 March 2020, shortly after the incident.[4] The applicant described the injury as “Arc flash” in relation to his eye area. In relation to the mechanism of injury, the applicant stated: “... unexpectedly there was a loud explosion and an arc flash from the CB cabinet for that fan”; “... At the time of the incident there was a loud bang and burning smell. also [sic] big arc flash...”, and “... there was an unexpected explosion and arc flash Instructed to evacuate the building to the muster point”.
[4] Reply, page 6.
The applicant completed a Worker’s Injury Claim Form dated 13 October 2020.[5] The applicant stated that the incident occurred on 20 March 2020 (which appears to be inaccurate), “While switching the Jet fan into reverse direction the switchboard exploded in front of my face and blew me back into the row of switchboards behind me. The industrial busbar also melted above me and molten metal burnt my head”. In relation to the injury sustained and body parts affected, the applicant stated “I’ve had extensive UV exposure due to the size of the explosion and significant damage to my upper right leg due to the impact of hitting the switchboard behind. Also suffering from PTSD”. The applicant noted that he had received medical treatment for his injury. In answer to a question whether the applicant had returned to work and what issues would delay or prevent him from returning to work, the applicant stated “Yes, the damage to the cornea of my eyes and my PTSD from the incident”.
[5] Reply, page 13.
The applicant made a signed written statement dated 23 November 2020.[6] The applicant stated that on 26 March 2020, an explosion occurred when the applicant, in the course of his work as an electrician and in accordance with instructions, switched a jet fan into reverse mode. At the time, the applicant was standing about 20cm in front of a switchboard. The applicant experienced a loud bang from the switch board then a very bright flash directly in front of him. Melting metal dripped onto his face and neck. The force of the explosion pushed the applicant back and he hit another row of switchboards that were about a metre behind him. The applicant’s right hip was the point of contact with the switchboard and he felt pain directly after the impact. The applicant’s eyes were damaged and he suffered pain in the area of his eyes and an instant painful headache. The applicant went into shock from the explosion. There was a lot of smoke and an electrical fire and the applicant was worried and wanted to get out of the room quickly. He was able to crawl out of the room.
[6] ARD, page 1.
The applicant stated that, shortly after the explosion, he was evacuated to another room and he commenced making a written record about the event. Soon after, he went into complete shock and was transported to hospital. The applicant was treated in hospital by testing his eyes. No obvious damage was found and he was given antibiotics and eye drops. After a few hours, the applicant was discharged from hospital and returned home. His eyes were very sensitive to light and he was unable to look at light without it causing severe headaches.
The applicant stated that after around five days following the incident, the applicant attended work, completed an incident report and spoke with a person who was investigating the incident.
The applicant stated that he was unable to return to work due to the eye injury and pain in his hip. He was unable to drive due to his injuries. The applicant received medical treatment.
The applicant stated that he has problems with his cornea which may require surgery. He feels irritation and pain in his eyes. His hip was very badly bruised in the incident and continues to cause him pain with tingling into his leg and up to his neck due to some nerve damage. The applicant has received physiotherapy treatment. The applicant also suffers post-traumatic stress disorder and anxiety and received psychological treatment.
The applicant had no major illnesses or injuries and did not wear eye glasses prior to the incident on 26 March 2020.
Other witness evidence
Karen Ann Kenney, safety advisor
Ms Kenney made a written statement dated 14 December 2020.[7] Ms Kenney stated that she works as a safety advisor for an electrical commissioning company.
[7] Reply, page 31.
Ms Kenney stated that she met the applicant shortly after the incident on 26 March 2020. She observed that the applicant was “a little shaken though otherwise fine”. Ms Kenney commenced taking the applicant’s statement though she “could see that the applicant was not well enough to continue as I could see he was a little vague and suffering from some shock”. Ms Kenney transported the applicant to hospital for treatment and waited there whilst the applicant received treatment. Whilst the applicant was being treated in hospital, the applicant said that he had seen an arc flash at the time of the explosion. The applicant also said that he “suffers from pterygium that causes his eyes to appear red”.
Ms Kenney stated that the applicant was deemed fit to work and was discharged from hospital. Ms Kenney transported the applicant from the hospital back to work, and then continued to take the applicant’s statement regarding the incident. The applicant said that when he was testing some jet fans, he heard a loud bang, saw an arc flash and smelt burning. Ms Kenney noted that the applicant “does not describe any other injuries suffered from the explosion stating there was an arc flash with eye damage”. After the explosion, the applicant “left the building as directed”.
Ms Kenney noted that other witnesses gave accounts of the incident which were similar to the applicant’s account. She noted that no person was working alongside or near the applicant at the time of the incident.
Ms Kenney stated that the applicant did not attend work on 27 March 2020,
28 March 2020 and 31 March 2020. The applicant advised that his eyes were feeling sensitive and that he had been “in bed all day” but did not need to see a doctor. Ms Kenney was advised by the applicant’s supervisor that he had, incidentally, observed the applicant “with a group of people drinking and partying” on or about 28 March 2020.Ms Kenney stated that the applicant attended at work and was able to carry out his normal duties without any restrictions on 31 March 2020. On 2 April 2020, the applicant sent
Ms Kenney photos which showed a bruise to his right thigh, which he advised was a result of the incident on 26 March 2020 at work. The applicant ceased work with the respondent on
12 April 2020 when his work came to an end. Ms Kenney has had no further contact with the applicant. An investigation into the incident confirmed that the applicant was not at fault in any way.
James Madden, crew member
Mr Madden made a written statement on 26 March 2020.[8] Mr Madden stated that, at the time of the incident on 26 March 2020, he saw a large flash of light and heard a loud bang. He immediately checked to see what had happened and if anyone was injured, “established that no one was hurt”, instructed people to evacuate the area and go outside and notified his supervisor. Upon inspection of the fault area, Mr Madden identified a black arc flash mark on one of the bus ducts and he could smell and see smoke and a small flame in the duct, which was extinguished. Mr Madden made arrangements for relevant people to be notified and for witness statements to be taken.
Independent medical evidence
[8] AALD, page 1.
Dr James Bodel, orthopaedic surgeon
Dr Bodel provided an independent medical opinion at the request of the applicant.
In a report dated 20 June 2022,[9] Dr Bodel initially summarised the injuries as injuries to both eyes (pterygia), neck, both shoulders and psychiatric sequelae. Dr Bodel noted that the applicant described the history of the injury on 26 March 2020 as follows:[10]
“There was an explosion and a flash and he was knocked back landing heavily on the ground. He had pain in the lower part of the back and the right hip and buttock area and he also had visual disturbances because of an “arc flash”.
He was taken to St George Hospital. From the orthopaedic point of view he had back pain and right buttock and hip pain and the injury to the eyes and the pterygia are matters for others to assess but he did have neck and back pain as a result of this explosion.
...
He states that his circumstances has stabilised. It is now two years since the accident happened and he still has neck pain and right shoulder and arm pain...”
[9] ARD, page 77.
[10] ARD, page 78.
Dr Bodel noted that there were no previous claims and no subsequent accidents nor injuries.[11]
[11] ARD, page 79.
On examination, Dr Bodel noted that:[12]
[12] ARD, page 80.
“Mr Lashbrook... is uncomfortable when sitting on a chair and he rises slowly. There is no leg length inequality or spinal deformity and he walks without a limp. He has tenderness in the trapezius muscle at the base of the neck on the right side and a reduced range of neck flexion extension and rotation in all directions and this is most restricted on rotation to the left. He has a restricted range of shoulder movement on the right hand side and there is tenderness over the rotator cuff anteriorly on the right. The range of movement in each shoulder is recorded in the table which follows.
Shoulder Movements
Active ROM unmeasured
RIGHT
Active ROM unmeasured
LEFT
Flexion
140 º
180 º
Extension
40 º
50 º
Adduction
20 º
50 º
Abduction
120 º
180 º
Internal rotation
60 º
90 º
External rotation
60 º
90 º
There is impingement of the right shoulder but no instability. There is no restriction of elbow, wrist or hand movement and no clinical sign of radiculopathy. There is tenderness at the lumbosacral junction on the right side and guarding in that area and he reaches forward in flexion with his hands to the knees and there is backache at this point and also on extension with a reduced range of lateral bending to the left. Straight leg raising is unimpaired at 80 degrees on each side and there is no evidence of nerve root irritability. He has a good range of hip, knee, ankle and subtalar movement and there is no clinical sign of radiculopathy in the lower limbs.”
Dr Bodel noted that there were no X-rays or other tests available for review.[13]
[13] ARD, page 80.
In response to specific questions, Dr Bodel stated:[14]
[14] ARD, pages 80-81.
“In response to your specific questions I would indicate the following:
1. The history of the alleged incident and injury as reported by Mr Lashbrook to you.
This gentleman suffered a serious injury in an explosion at the workplace in Sydney, on 26 March 2020. From the musculoskeletal point of view he has injured his neck, his right shoulder and his lower back. The other areas of injury are for others to assess.
2. Mr Lashbrook’s current symptoms and restrictions (if any) as described by him.
This gentleman’s ongoing symptoms are pain and stiffness in the region of the neck and right shoulder and back.
3. Your objective findings on examination.
The clinical findings in regard to the orthopaedic matters have been listed in the ‘Examination’ section above.
4. Do you believe the injuries sustained are work related, in that,
Mr Lashbrook’s employment was the significant contributing factor to his injuries?The orthopaedic injuries are directly related to the mechanism of injury that occurred in the accident at work on 26 March 2020.
5. Do you believe Mr Lashbrook’s future employment prospects have been affected by his injury/ies? Please explain.
This gentleman’s future employment prospects have been compromised by the residual effects of injury both the physical injuries and the psychological injuries.
6. Do you believe that future treatment may be requires of Mr Lashbrook’s injuries and, if so, what treatment and at what costs?
From the orthopaedic point of view he needs continuing conservative care with rest and analgesic medication, and regular review by the GP, physiotherapy and an exercise-based program. I see no indication for surgery on the neck or the back or the right shoulder.”
In a further report also dated 20 June 2020,[15] Dr Bodel stated that he believed that the applicant’s clinical condition had stabilised and he had reached a level of maximum medical improvement. Having regard to the Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA-5), Dr Bodel stated:[16]
“This gentleman has a DRE Cervical Category II level of assessable impairment in accordance with the description in Table 15-5 on Page 392 of AMA5. He has asymmetry of movement and guarding but no clinical sign of radiculopathy.
This gentleman’s activities of daily living have been moderately compromised in accordance with Item 4-34 and Item 4-35 on Page 28 of the Fourth Edition of the WorkCover Guidelines, giving a 2% loading and a 7% Whole Person Impairment overall.
He has a DRE Lumbar Category II level of assessable impairment in accordance with the description in Table 15-3 on Page 384 of AMA5. Again there is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.
There is also the rateable restriction of right shoulder movement which is assessed using Figure 16-40 on Page 476, Figure 16-43 on Page 477 and Figure 16-46 on Page 479. There is a 10% upper extremity impairment which converts to a 6% Whole Person Impairment using Table 16-3 on Page 439.
This leaves three individual ratings to be combined and they are 7% for the cervical spine, 6% for the right upper extremity and 5% for the lumbar spine. The final level of Whole Person Impairment is a 17% Whole Person Impairment in this case.
There is no indication clinically of any pre-existing abnormality or condition and no basis for a deduction of pre-existing impairment. This assessment excludes the assessment for the damage to the eyes and other injuries caused by this accident.
The rateable impairment is determined by the clinical findings. The impairment is calculated using AMA5 and the appropriate tables. The only variable potential finding here is the cervical spine and I have attributed a 2% loading for the interference in activities of daily living which is appropriate for the way in which this has interfered with his day-to-day activities. That allows for the 7% Whole Person Impairment.
There is no indication for any pre-existing abnormality or condition in any of the injured areas and no deduction for pre-existing impairment.”
[15] ARD, page 82.
[16] ARD, page 83.
Dr Paul Robinson, orthopaedic surgeon
Dr Robinson provided an independent medical opinion at the request of the insurer.
In a report dated 27 July 2022,[17] Dr Robinson stated that the applicant reported the history of injury as follows:[18]
“He states he was thrown backwards in the resulting explosion and was possibly concussed, although he is not sure. He was thrust into a control handle which struck him in the right hip. This passed through his shirt and resulted in broken skin but no actual insertion of metal or anything into his body.
He also sustained damage to his eyes.
He was taken to St George Hospital where he was found to have low back pain. He states there was no x-ray taken and his major problem which was treated there was the flash injury to his eyes...
He complained of pain in his lower back extending down into his right leg into the toes, particularly the second, third and fourth toes of the right foot. He also had associated pain extending from the back up into his right neck and eye. He complained of pain down into his right arm and was seen by his local practitioner with various investigations performed...
Physiotherapy was instituted... and... continues...
He has developed serious psychiatric problems... He has been referred to a pain clinic and a nerve block was suggested...
He has also had an injection into the right Sl nerve root and the information provided did not indicate that relief was obtained by such. Mr Lashbrook said he had no improvement. This was performed on 7 May 2021.”
[17] Reply, page 39.
[18] Reply, page 40-41.
Dr Robinson noted that the applicant reported constant varying pain in his cervical, thoracolumbar and right shoulder regions.[19]
[19] Reply, page 42.
On examination, Dr Robinson noted:[20]
[20] Reply, pages 43-45.
“Cervical Region
He has a normal posture. There is no tenderness. There is no muscle spasm. There is no scoliosis. There is no change in the normal cervical lordosis.
He has a decrease in his range of movement with 10-15° loss of extension and flexion. Lateral flexion is satisfactory as is rotation.
He points to the muscles on the right side of his cervical region as the site of pain which extends up behind his ear to the scalp.
I could detect no evidence of any impairment of function neurologically in his upper limbs with respect to reflexes or power. He does have an alteration of sensation in his right thumb but has protective sensation in such. Power of all muscle groups especially provided by the median and ulnar nerve is normal. There is no evidence of any muscle wasting in his upper limbs.
Thoracolumbar Vertebrae
He has two marks on the back of his lumbar spine which he states are related to a fall he recently sustained.
When he walks his gait exhibits a limp with a description of pain occurring in the right hip and calf producing such.
He has no change in his normal lumbar lordosis. There is no scoliosis, no muscle spasm and there is only mild tenderness which is present in the right sacroiliac joint.
The range of movement of his spine allows him to reach to below his knees on forward flexion. Left lateral rotation allows him to reach to below his knee but less so when he does so on the right. Rotation is normal. Extension is normal.
He is able to walk on his toes but he has trouble standing on his heels.
Straight leg raising is 60° on the right and 90° on the left. All reflexes are present and equal.
Power of all muscle groups so tested is normal, particularly those supplied by the LS/S1 nerve roots.
Sensation is altered but in no definitive nerve root distribution. There is an increase in sensation in the right first toe and decreased sensation in the second to fifth toes.
When he sits at 90°, he complains of pain and also when the right leg is stretched to more than 60°. I could detect no evidence of hip flexion loss. Straight leg raising does produce pain in his right sacroiliac joint. Rotation from a clinical point of view is normal, although he states it is painful.
Shoulders
There is an unequal height of the shoulders with the right being lower than the left and elevation of both shoulders does not create this decrease in height. The range of movement is as follows:
Range of Motion
Right
Left
Flexion
100 º
180 º
Extension
40 º
40 º
Abduction
140 º
180 º
Adduction
40 º
50 º
External rotation
90 º
90 º
Internal rotation
70 º
90 º
There is no evidence of any impingement on clinical examination and no labral pathology.
He states he gets relief of the symptoms in his right shoulder when he stretches the joint across to the left side of his body.”
Dr Robinson stated that in his opinion, the applicant had a work-related injury in March 2020 and:[21]
“His cervical and thoracolumbar region continue to cause pain but there is no evidence of any radiculopathy- there are some sensory changes which do not satisfy the requirements for radiculopathy as all muscles are functioning satisfactorily and there is no reflex or motor changes which would satisfy these requirements.
He does have an impairment of movement of his right shoulder but no evidence of any internal derangement. Radiology of the right shoulder was not provided to me and I am unsure as to whether this has been undertaken.
He thus has symptoms which do not conform to any definitive pathology and the cause of such at this stage is unknown.”
[21] Reply, page 45.
Dr Robinson diagnosed soft tissue injuries with respect to the applicant’s lumbar spine, cervical spine and right shoulder, with no evidence of radiculopathy, which relate to the incident on 26 March 2020 (in addition to eye problems dealt with by an ophthalmologist).[22]
[22] Reply, page 46.
Dr Robinson opined that the applicant’s presentation and disability was consistent with the history provided.[23] Dr Robinson opined that no other factors played a part in the applicant’s presentation, and he did not make any apportionment on that basis.[24]
[23] Reply, page 46.
[24] Reply, page 46.
Dr Robinson stated that the applicant had no capacity to resume his pre-injury duties and that the applicant’s incapacity resulted from the injuries sustained.[25]
[25] Reply, page 47.
In a further separate report dated 27 July 2022,[26] Dr Robinson stated that using AMA-5, he assessed total 15% WPI,[27] which was calculated on the basis of:
(a) 5% WPI in respect of the lumbar spine;
(b) 5% WPI in respect of the cervical spine, and
(c) 9% right shoulder impairment, which converts to 5% WPI in respect of the upper extremity.
[26] AALD, page 9.
[27] AALD, page 9-11.
Dr Robinson stated that there was no pre-existing condition or subsequent incident relating to those areas and no deductions on that basis.[28]
[28] AALD, page 11.
In a supplementary report dated 3 January 2023,[29] Dr Robinson stated that his diagnosis of the applicant’s current condition was:[30]
“Following the incident on 26 March 2020, Mr Lashbrook sustained injuries to his cervical spine with no resulting radiculopathy but with continuing pain.
He also sustained an injury to his right shoulder which at the time of my examination had not been currently examined and no further information has been available.”
[29] AALD, page 13.
[30] AALD, page 14.
Dr Robinson stated that, in his opinion, the applicant sustained the injuries at the time of the workplace incident dated 26 March 2020 and that the applicant’s employment was a substantial contributing factor to such.[31]
[31] AALD, page 14.
Later in the report, Dr Robinson stated that the applicant has reached maximum medical improvement. Using AMA-5, Dr Robinson assessed 15% total WPI in respect of injury to the applicant’s cervical spine, lumbar spine and right shoulder on 26 March 2020, calculated in a manner consistent with that described in his previous report.[32] Dr Robinson indicated that it was not appropriate to apply any deduction to the impairment assessment due to any previous injury or any pre-existing condition.[33]
[32] AALD, page 15. Also see AALD, page 9-11.
[33] AALD, page 15.
Dr Alan Hilton, opthalmologist
Dr Hilton provided an independent medical opinion at the request of the applicant.
In a prepared report dated 13 January 2021,[34] Dr Hilton noted that he examined the applicant on 9 December 2020. Dr Hilton stated that, in his opinion, a workplace injury involving an arc flash had aggravated the applicant’s pre-existing pterygia in both eyes and was the main contributing factor to the applicant’s current pterygia diagnosis and symptoms.[35]
[34] ARD, page 17.
[35] ARD, page 20.
Dr Hilton noted that the applicant had not worked since the date of the injury and only sought treatment for his injuries in September 2020. Dr Hilton recorded the following history:[36]
“... There was a large explosion and an arc flash occurred and [the applicant] was blown back by a large fire. Apart from having blurred vision and irritation of both eyes, he had a bruise [sic] hip. As far as his eyes were concerned, he was given various drops because his eyes were sore. He was only seen the one time in Sydney and he returned to Queensland the following day. He attended his local general practitioner who continued him on some treatment by way of drops for 3 to 4 weeks.
He thought that his eyes would get better but during the next few months they became worse, they became more red and irritable and he therefore consulted the ophthalmologist, Dr Nick Andrew.”
[36] ARD, page 18.
Dr Hilton noted that the applicant “states that his main reason for not returning to work is not due to the pterygia but due to the fact that he has issues with a hip injury and also he has some issues with a hip injury and also he has some post-traumatic stress issues”.[37]
[37] ARD, page 20.
Dr Michael Steiner, ophthalmic surgeon
Dr Steiner provided an independent medical opinion at the request of the applicant.
In a report dated 12 April 2022,[38] Dr Steiner stated his opinion that the applicant “has ptergia in both eyes which appear to have been exacerbated by the accident”.[39] Dr Steiner noted the relevant history, provided by the applicant:[40]
“A switchboard panel exploded in front of him. He was blown back and hit a panel behind him. He may have lost consciousness for a second or two. The explosion involved a very big flash. He was in shock and was taken to St George Hospital where he was for a couple of hours. He hurt the right side of his back, his neck and his right hip and his eyes.
...
He has not worked since the accident but this is mainly because of his PTSD and his other injuries...”
[38] ARD, page 69.
[39] ARD, page 71.
[40] ARD, page 70.
In further reports, respectively dated 12 April 2022[41] and 14 April 2022,[42] Dr Steiner stated that, using the Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA-4), he assessed 6% impairment of both eyes, which equates to 6% impairment of the visual system and equates to 6% WPI. Having regard to a 2% pre-existing impairment, Dr Steiner assessed the WPI in respect of the eyes due to the work-injury to be 4%.
[41] ARD, page 73.
[42] ARD, page 75.
Dr Ian Wechsler, ophthalmic surgeon
Dr Wechsler provided an independent medical opinion at the request of the applicant.
In a report dated 31 August 2022,[43] Dr Wechsler noted the following history:[44]
“On the 26th March, 2020 Mr Lashbrook was at work as an electrician... there was a massive short circuit where 9,600 amps went on the full current causing a massive explosion. There was a very bright flash of light and a massive arc flash. Mr Lashbrook was knocked back onto the switchboard. The switchboard melted and Mr Lashbrook was exposed to a massive amount of UV light. When Mr Lashbrook was knocked back he injured his right hip, the right side of his body, his back and his neck. He was knocked unconscious for a few seconds. He managed to crawl out on to the evacuation site before going into ‘shock’.
At the time of the explosion and soon after Mr Lashbrook noted he had blurred vision in both eyes and marked pain in both eyes. He was also extremely sensitive to light which affected both eyes.
...
Mr Lashbrook was unable to return to work because of his non-opthalmic injuries which include a bruised right hip and significant post-traumatic stress disorder...”
[43] ARD, page 85; also at Reply, page 56
[44] ARD, page 86.
Dr Wechsler stated that, in his opinion, the applicant’s employment was the main contributing factor to a significant aggravation of three pre-existing pterygiums, which had previously been quiescent and not actively growing nor giving rise to any ocular symptoms.[45]
[45] ARD, pages 89, 90, 91, 92.
Using AMA-4, Dr Weschler assessed a total 5% WPI due to the effects of the injuries sustained to the visual system, which was calculated on the basis of 10% WPI, with a deduction of 5% for pre-existing conditions.
Other medical evidence
Dr Nick Andrew, ophthalmologist
Dr Andrew provided an opinion at the request of the insurer. In a report dated
20 October 2020,[46] Dr Andrew stated that the applicant has large, active pterygia affecting both eyes. Dr Andrew stated that it was theoretically possible that an arc flash to the applicant’s face in March 2020 accelerated the growth of the applicant’s pterygia.[47]
Treating medical evidence
[46] Reply, page 22.
[47] Reply, page 22.
Dr N Ameer Hamza
Dr Hamza prepared a Mental Health Care Plan dated 2 June 2021,[48] which stated that the applicant had a diagnosis of “Depression/Anxiety, PTSD” which was to be managed by psychotherapy and counselling. A referral to a psychiatrist was attached.
[48] ARD, page 22.
Dr Ivor Hodgson, consultant psychiatrist
In his report dated 16 April 2021,[49] Dr Hodgson stated that he diagnosed a deterioration in the applicant’s mental state regarding symptoms of post-traumatic stress disorder and associated anxiety following a work-related injury. Dr Hodgson noted that the applicant reported deterioration of symptoms of post-traumatic stress disorder when he visited friends in Sydney (where the workplace injury occurred), which culminated in his girlfriend having to fly to Sydney and drive his car home because he felt unable to do that himself. Dr Hodgson noted that the applicant “acknowledges that there was a lot of partying going on, and that the after effects of this may have made him feel more anxious”.
[49] ARD, page 35.
Dr Hodgson’s further reports, respectively dated 16 April 2021,[50] 12 May 2021,[51]
2 June 2021,[52] 3 June 2021,[53] 17 June 2021,[54] 1 July 2021,[55] 15 July 2021,[56] 23 July 2021, [57] 18 August 2021,[58] 22 September 2021,[59] 25 October 2021,[60] 24 November 2021,[61] 6 January 2022,[62] 7 March 2022[63] and 15 March 2022[64], noted that the applicant experienced significant ongoing symptoms of post-traumatic stress disorder following a work-related injury.[50] ARD, page 35.
[51] ARD, page 37.
[52] ARD, page 39 and page 41.
[53] ARD, page 43.
[54] ARD, page 44.
[55] ARD, page 46.
[56] ARD, page 48.
[57] ARD, page 50.
[58] ARD, page 51 and page 53.
[59] ARD, page 55.
[60] ARD, page 57.
[61] ARD, page 59.
[62] ARD, page 61.
[63] ARD, page 62.
[64] ARD, page 64.
Investigations
A report of Dr N Ameer Hamza in relation to a CT lumbar spine on 24 February 2021[65] indicated no evidence of any pathology of a major nature from L1 to S1. It noted a slight decrease in the height of the L5/S1 disc and a mild dorsal bulge of the L4/5 and L5/S1 discs causing minimal thecal sac indentation at their respective levels. It noted that no significant nerve root compression was observed.
[65] Reply, page 38.
A report of Dr Roy Thomas in relation to an MRI of the applicant’s head, spine and lumbosacral plexus on 17 August 2021 noted:[66] diffuse nonspecific bilateral FLAIR and T2 signal hyperintensity in the cerebral white matter tracts; no spinal cord abnormality; no disc bulge or protrusion and no lumbar spinal canal stenosis, and an incidental finding of a level S1/S2 conjoint nerve root.
[66] Reply, page 49.
A report showed high definition scans of the applicant’s eyes on 23 August 2022.[67]
[67] Reply, page 51.
Certificates of Capacity
Numerous Certificates of Capacity were completed in respect of the period from
26 March 2020 to 20 February 2023. They stated that the applicant had no capacity for work in relation to a stated date of injury on 26 March 2020 from:[68][68] Reply, page 67.
(a) 26 March 2020 to 15 November 2020 in respect of “PTSD.. damage to both eyes, with a stated date of injury of 26 March 2020; [69]
(b) 3 November 2020 to 4 January 2021 in respect of “Arc flash to both eyes, Right hip strain with bruises”; [70]
(c) 7 May 2021 to 7 August 2021 in respect of “Arc flash both eye, Right hip strain, PTSD”; [71]
(d) 6 August 2021 to 6 November 2021 in respect of “Arc flash both eye, PTSD. Nerve damage to S1/C8”; [72]
(e) 18 November 2021 to 18 January 2022 in respect of “Arc Flash both eye, PTSD, nerve damage C1, C8”; [73]
(f) 5 February 2022 to 15 April 2022 in respect of “Arc flash eye (Both), PTSD, Nerve damage to S1”; [74]
(g) 14 April 2022 to 14 June 2022 in respect of “Arc flash eye (both), PTSD, Nerve damage to S1”; [75]
(h) 15 June 2022 to 15 August 2022 in respect of “Arc flash eye (both), PTSD, Nerve damage to S1”; [76]
(i) 16 August 2022 to 16 November 2022 in respect of “Nerve damage to S1, PTSH [sic], Bilateral Arc Flash”[77], and
(j) 21 November 2022 to 20 February 2023 in respect of “Nerve damage to S1, PTSH [sic], Bilateral Arc Flash”. [78]
[69] Reply, page 70.
[70] Reply, page 73.
[71] Reply, page 67.
[72] Reply, page 76.
[73] ARD, page 28; see also Reply, page 79.
[74] ARD, page 31; see also Reply, page 82.
[75] Reply, page 85.
[76] Reply, page 88.
[77] Reply, page 91.
[78] Reply, page 94.
Clinical records
The evidence includes various clinical records of the applicant’s treating practitioner.[79]
[79] AALD, pages 17-25.
The clinical records include records regarding the consultations:
(a) on 6 May 2020, in respect of insomnia and ptergium;
(b) on 20 May 2020, in respect of a mental health care plan;
(c) on 1 June 2020, in respect of headache which increased with head movement;
(d) on 10 June 2020, in respect of anxiety disorder;
(e) on 23 July 2020, in respect of right elbow pain;
(f) on 17 August 2020, in respect of a skin infection on left calf (injury with tool);
(g) on 20 August 2020, in respect of a wound check;
(h) on 3 September 2020, in respect of post-traumatic stress disorder following “an accident in his work few months ago”;
(i) on 10 September 2020, in respect of worker’s compensation, which recorded:
“Work injury
arc flash from blast at work and hit Rt leg in the fall
bruising over RT thigh
26th March 2020
not worked after that
PTSD and on medication
seeing psychologist
eye still painful and Red
exam red eye
needs ophthalmologist review”(j) on 7 October 2020, in respect of anxiety disorder;
(k) on 12 October 2020, in respect of workers compensation;
(l) on 15 October 2020, in respect of workers compensation, which recorded:
“New patient [sic] to me
Work related injury
History of:arc flash from blast at work
Blown back into the switch borad [sic] behind him
Hit his upper R leg and hip
Says had UV exposure to his both eye as a results of balst [sic]”(m) on 3 November 2020, in respect of workers compensation, which recorded:
“Rt hip pain still ongoing”
(n) on 4 November 2020, in respect of anxiety disorder, and
(o) on 6 November 2020, in respect of “work injury, LBP, R hip”.
SUBMISSIONS
Counsel for the applicant and the respondent both made oral submissions, which were recorded. They are not repeated in full, but have been considered.
Applicant’s submissions
In summary, the applicant submits that:
(a) there is no dispute that the applicant was impacted by an explosion at work on
26 March 2020, which caused the applicant to sustain arc flash in both eyes, right hip strain with bruising and post-traumatic stress disorder;(b) the unanimous evidence of both the applicant’s and insurer’s respective independent medical experts, Dr Bodel and Dr Robinson, that the applicant also sustained soft tissue injury to his lumbar spine, cervical spine and right shoulder, with no evidence of radiculopathy, as a result of the explosion on 26 March 2020 and that the applicant’s employment was a significant contributing factor to the injuries, is persuasive and should be accepted;
(c) the disputed injuries are consistent with the accepted mechanism of injury, and evidence that it was a significant explosion which caused the applicant to be thrown backwards about 1m into an immovable object, with the applicant’s right hip being the significant point of contact;
(d) that evidence is consistent with the applicant’s evidence that he immediately felt pain and that “My hip that was very badly bruised continues to cause me pain with tingling into my leg and up to my neck due to some nerve damage”;
(e) the absence of contemporaneous complaints of injury to the applicant’s lumbar spine, cervical spine or right shoulder can be explained by evidence that:
(i)the applicant was initially seriously impacted by the arc flash in both eyes which was an initial primary focus for treatment;
(ii)the applicant also initially suffered shock from the explosion, and
(iii)the applicant was subsequently significantly affected by post-traumatic stress disorder caused by the explosion;
(f) whilst there is no dispute that there is no evidence of contemporaneous complaints of injuries to the applicant’s lumbar spine, cervical spine and right shoulder, there is evidence that the applicant complained about the injuries over time, and
(g) there is no evidence of any pre-existing injury nor other mechanism of injury.
Respondent’s submissions
In summary, the respondent submits that:
(a) the evidence of Dr Bodel and Dr Robinson in relation to the disputed injuries to the applicant’s lumbar spine, cervical spine and right shoulder is unreliable and should not be accepted because their respective opinions were simply based on history given and symptoms reported to them by the applicant and they did not find any radicular symptoms: further, if the occurrence of the injuries cannot be accepted, then there is no basis to accept the opinions of the independent medical experts in relation to those disputed injuries;
(b) the investigations do not show any significant injury;
(c) at best, the evidence may support a finding of a soft tissue injury to the claimed body parts however the evidence in relation to soft tissue injury is contradictory;
(d) there is no evidence of any complaint regarding the applicant’s right shoulder until the applicant was examined by Dr Bodel approximately two and a half years after the incident on 26 March 2020, despite numerous opportunities for the applicant to have reported symptoms to his treating practitioners at an earlier time;
(e) in relation to the lumbar spine and the cervical spine, whilst the applicant gave evidence of pain of his hip that was badly bruised and tingling into his leg and up to his neck due to some nerve damage, relevantly, there is no evidence of pain in the applicant’s lumbar spine and cervical spine;
(f) evidence of Ms Kenney was that, following the incident on 26 March 2020, the applicant did not describe any injuries apart from an arc flash with eye damage and, further, the hospital cleared the applicant fit for work after examining him;
(g) the lack of contemporaneous evidence of complaint about the disputed injuries supports a finding that those body parts were not injured in the work incident on 26 March 2020. Whilst an initial delay in reporting symptoms may be explained by factors such as acute eye injury, shock and post-traumatic stress disorder, the significant delay in the applicant reporting symptoms of injury to the relevant body parts support a finding that no such injury was caused by the work incident on
26 March 2020;(h) the applicant’s submission that he failed to immediately report the disputed injuries because of the effects of shock, is discredited by evidence that the applicant: was involved in “partying” following the incident on 26 March 2020; carried out his normal work duties on 31 March 2020, and had the clarity of mind on 2 April 2020 to send photos of a bruise to his right thigh;
(i) in the circumstances, the applicant’s failure to contemporaneously complain of injury to his lumbar spine, cervical spine and right shoulder is uncontradicted and compelling evidence in support of a finding that he did not suffer such injuries;
(j) having regard to the evidence, the Commission should not accept the applicant’s evidence that he sustained injury to his lumbar spine, cervical spine and right shoulder, and
(k) accordingly, the Commission should make an award for the respondent in respect of the applicant’s lumbar spine, cervical spine and right shoulder.
Applicant’s submissions in reply
In summary, the applicant submits that:
(a) soft tissue injury is sufficient to ground an award for the respondent with respect to the relevant body parts;
(b) the evidence of Dr Bodel and Dr Robinson in relation to the relevant injuries is compelling and should be accepted because they did not simply accept the applicant’s reports regarding the injuries, but they turned their minds to and actively addressed specific questions regarding causation, including the statutory test of whether employment was a substantial contributing factor to the injuries, and assessment of WPI in the context of any non-work related causal factor or any other pre-existing or subsequent injury;
(c) there was simply no evidence of any pre-existing or other injury to the relevant body parts;
(d) the evidence in relation to “partying” should not be given any weight as it is not persuasive and it is highly prejudicial and unfair to the applicant, and
(e) the applicant’s evidence that he experiences pain with tingling into his leg and up to his neck clearly encompasses the applicant’s back.
FINDINGS AND REASONS
Did the applicant sustain injury to his lumbar spine, cervical spine and right shoulder out of or in the course of his employment, to which his employment was a substantial contributing factor – ss 4(a) and 9A of the 1987 Act?
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
a.the time and place of the injury,
b.the nature of the work performed and the particular tasks of that work,
c.the duration of the employment,
d.the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
e.the worker’s state of health before the injury and the existence of any hereditary risks,
f.the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[80] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[81]
[80] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[81] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463] – [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[82] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[82] [2016] HCA 43, [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[83] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[83] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
It is clear from the evidence, and not in dispute, that the applicant was impacted by an explosion at work on 26 March 2020.
The applicant’s various reports about the injuries that he sustained on 26 March 2020 vary somewhat. For example, the applicant’s written statement on 26 March 2020 recorded only arc flash eye injury. The Worker’s Injury Claim Form completed by the applicant on
13 October 2020 noted only “significant damage to my upper right leg due to the impact of hitting the switchboard behind. Also suffering from PTSD”. On 12 April 2022, Dr Steiner noted[84] that the applicant reported that “He was blown back and hit a panel behind him. He may have lost consciousness for a second or two... He was in shock... He hurt the right side of his back, his neck and his right hip and his eyes”. Dr Steiner noted that the applicant “has not worked since the accident but this is mainly because of his PTSD and his other injuries”. On 20 June 2022, Dr Bodel noted[85] that the applicant reported being “knocked back landing heavily on the ground. He had pain in the lower part of the back and the right hip and buttock area and he also had visual disturbances”. On 27 July 2022, Dr Robinson noted[86] that the applicant reported that “he was thrown backwards in the resulting explosion and was possibly concussed, although he is not sure. He was thrust into a control handle which struck him in the right hip” and that he was found to have low back pain at the hospital shortly after the incident. On 31 August 2022, Dr Wechsler noted[87] that the applicant reported that “when he was knocked back he injured his right hip, the right side of his body, his back and his neck. He was knocked unconscious for a few seconds”. On 13 January 2023, Dr Hilton noted[88] that the applicant reported that his main reason for not returning to work was due to issues with a hip injury and post-traumatic stress disorder.[84] Report of Dr Steiner dated 12 April 2022: ARD, page 69.
[85] Report of Dr Bodel dated 20 June 2022: ARD, page 77.
[86] Report of Dr Robinson dated 27 July 2022: Reply, page 39.
[87] Report of Dr Wechsler dated 31 August 2022: ARD, page 85; Reply, page 56.
[88] Report of Dr Hilton dated 13 January 2021: ARD, page 17.
In relation to the mechanism of injury, the various reports given by the applicant are broadly consistent with his evidence that the explosion on 26 March 2020 occurred in front of his face and the force of the explosion was so significant that it caused him to be bodily thrown backwards, a distance of approximately 1m, against the row of switchboards which had been situated behind him. No other evidence contradicts the applicant’s evidence in that regard.
The applicant’s evidence that his right leg or right hip was the significant point of contact with the row of switchboards behind him is supported by the evidence of Ms Kenney that on
2 April 2020, the applicant sent her photos which showed a bruise to his right thigh. This same mechanism of injury was generally consistently reported by the applicant to various treating medical practitioners and medical experts. Indeed, the insurer has also accepted right hip strain with bruising.The applicant’s evidence[89] is that he immediately felt pain and that “My hip that was very badly bruised continues to cause me pain with tingling into my leg and up to my neck due to some nerve damage”. That clearly encompasses the applicant’s back.
[89] Applicant’s statement: ARD, page 7.
I accept that there is no evidence of contemporaneous complaints of the disputed injuries.
In fact, there was some considerable delay between the incident on 26 March 2020 and the applicant reporting symptoms in relation to the disputed injuries.
Further, I accept that the applicant did not report symptoms in relation to the disputed injuries at various times when he may have had opportunity to do so, for example when he appears to have been treated for other complaints during 2020.
However, the applicant did complain about the disputed injuries over time.
The applicant first reported right leg injury on 2 April 2020, when he sent Ms Kenney photos which showed a bruise to his right thigh.
Clinical records of the treating practitioner noted that:
(a) on 1 June 2020, the applicant reported headache which increased with head movement;
(b) on 3 September 2020, the applicant was diagnosed with post-traumatic stress disorder following “an accident in his work few months ago”;
(c) on 10 September 2020, the applicant reported not working after an arc flash work injury on 26 March 2020 where he hit his right leg in a fall and sustained bruising over his right thigh, eye injury and post-traumatic stress disorder;
(d) on 15 October 2020, the applicant described having been blown back into a switch board behind him and he hit his upper right leg and hip and sustained eye injury;
(e) on 3 November 2020, the applicant reported ongoing right hip pain, and
(f) on 6 November 2020, the applicant reported lower back pain and right hip injury from the work injury.
The Certificate of Capacity dated 3 November 2020 first noted “Right hip strain with bruises” with a stated date of injury of 26 March 2020.
The Certificate of Capacity dated 6 August 2021 first noted “Nerve damage to S1/C8”.
In relation to the applicant’s cervical spine:
(a) On 20 June 2022, Dr Bodel[90] noted that the applicant reported that he had neck pain from the incident on 26 March 2020 and that he “still has neck pain”. On examination, Dr Bodel noted that the applicant “has tenderness in the trapezius muscle at the base of the neck on the right side and a reduced range of neck flexion extension and rotation in all directions and this is most restricted on rotation to the left”. Dr Bodel opined that the applicant injured his neck in the incident on 26 March 2020 and that his ongoing symptoms of pain and stiffness in the neck region related to that mechanism of injury. Having regard to the AMA-5, Dr Bodel stated that the applicant has a DRE Cervical Category II level of assessable impairment, with asymmetry of movement and guarding but no clinical sign of radiculopathy, and
(b) On 27 July 2022, Dr Robinson noted[91] that the applicant stated that he was possibly concussed in the incident, but was not sure. The applicant reported that he sustained pain extending from the back up to his right neck and eye and down into his right arm. The applicant reported ongoing constant cervical pain which extended up behind the ear and forward to the front of his right eye. The applicant stated that the cervical pain passes down into his right arm and is associated with a tingling in the whole of the ulnar side of such. The applicant pointed to the right trapezius muscle as the site of that pain. On examination,
Dr Robinson noted a decrease in range of movement. Dr Robinson opined that the applicant has ongoing pain in the cervical region with no evidence of radiculopathy. Dr Robinson diagnosed soft tissue injuries. Dr Robinson stated that the applicant’s presentation and disability was consistent with the history provided. In a supplementary report dated 3 January 2023,[92] Dr Robinson stated that employment was a substantial contributing factor to the injury. Dr Robinson opined that the applicant could be classified as having DRE Cervical Category II impairment with no radiculopathy and assessed whole person impairment on that basis.[90] Dr Bodel’s report dated 20 June 2022: ARD, page 77.
[91] Dr Robinson’s report dated 27 July 2022, Reply page 39.
[92] AALD, page 13.
In relation to the applicant’s lumbar spine:
(a) on 20 June 2022, Dr Bodel[93] noted that the applicant stated that during the incident on 26 March 2020 “he was knocked back landing heavily on the ground. He had pain in the lower part of the back and the right hip and buttock area”. On examination, Dr Bodel noted that the applicant had tenderness at the lumbosacral junction on the right side and guarding in that area and backache when the applicant reached forward with a reduced range of lateral bending to the left. Dr Bodel opined that the applicant injured his lower back in the incident on 26 March 2020 and that his ongoing symptoms of pain and stiffness in the back region related to that mechanism of injury. Having regard to the AMA-5,
Dr Bodel stated that the applicant has a DRE Lumbar Category II level of assessable impairment, with asymmetry of movement and guarding but no clinical sign of radiculopathy, and(b) on 27 July 2022, Dr Robinson noted[94] that the applicant stated that he sustained lower back pain which extended down his right leg into the toes in the incident on 26 March 2020. The applicant reported constant varying hip pain, particularly after walking for approximately 30 minutes, bending and lifting and paraesthesia in his right foot. On examination, Dr Robinson noted mild tenderness in the right sacroiliac joint and painful, but otherwise normal, rotation. There was some difference in leg raising. Sensation was altered but there was no definitive nerve root distribution. Dr Robinson opined that the applicant has ongoing pain in the thoracolumbar region with no evidence of radiculopathy. Dr Robinson diagnosed soft tissue injuries. Dr Robinson stated that the applicant’s presentation and disability was consistent with the history provided. In a supplementary report dated 3 January 2023,[95] Dr Robinson stated that employment was a substantial contributing factor to the injury. Dr Robinson opined that the applicant could be classified as having DRE Lumbar Category II impairment and he assessed whole person impairment on that basis.
[93] Dr Bodel’s report dated 20 June 2022: ARD, page 77.
[94] Dr Robinson’s report dated 27 July 2022, Reply page 39.
[95] AALD, page 13.
In relation to the applicant’s right shoulder:
(a) On 20 June 2022, Dr Bodel[96] noted that the applicant reported that he “still has... right shoulder and arm pain”. On examination, Dr Bodel noted that the applicant “has a restricted range of shoulder movement on the right side and there is tenderness over the rotator cuff anteriorly on the right... There is impingement of the right shoulder but no instability”. Dr Bodel opined that the applicant injured his right shoulder in the incident on 26 March 2020 and that his ongoing symptoms of pain and stiffness in the right shoulder related to that mechanism of injury. Having regard to the AMA-5, Dr Bodel stated that the applicant has a rateable restriction of right shoulder movement, and
(b) on 27 July 2022, Dr Robinson noted[97] that the applicant stated that he sustained pain extending from the back up to his right neck and down into his right arm from the incident on 26 March 2020. The applicant reported reasonably satisfactory range of right shoulder movement but painful movement. On examination,
Dr Robinson noted unequal height of the shoulders with the right lower than the left and some restricted range of motion in the right shoulder. Dr Robinson stated that the applicant has impairment of movement in the right shoulder with no evidence of any internal derangement. He diagnosed soft tissue injuries.Dr Robinson diagnosed soft tissue injuries. Dr Robinson stated that the applicant’s presentation and disability was consistent with the history provided. In a supplementary report dated 3 January 2023,[98] Dr Robinson stated that employment was a substantial contributing factor to the injury. Dr Robinson opined that the applicant had an impairment of his right upper extremity (shoulder) and he assessed WPI on that basis.[96] Dr Bodel’s report dated 20 June 2022: ARD, page 77.
[97] Dr Robinson’s report dated 27 July 2022, Reply page 39.
[98] AALD, page 13.
The applicant’s evidence is broadly consistent, although additional symptoms and injuries were reported over time.
The first recorded complaint of injury specifically in relation to the applicant’s right shoulder was when the applicant was examined by Dr Bodel in June 2022.
I have considered the respondent’s submission that the applicant’s failure to immediately report the disputed injuries because of the effects of shock, is discredited by evidence including that:
(a) the applicant was involved in “partying” following the incident on 26 March 2020 (the applicant’s supervisor, Ms Kenney, stated that Mr Thurston observed the applicant with a group of people “drinking and partying” on or about the evening of 27 March 2020; further, consultant psychiatrist Dr Hodgson noted the applicant’s concession that there was “partying” in Sydney);
(b) the applicant carried out his normal work duties on 31 March 2020, and
(c) the applicant had the clarity of mind on 2 April 2020 to send Ms Kenney photos of a bruise to his right thigh.
It is not in dispute that, shortly after the incident on 26 March 2020, the applicant suffered immediate effects of acute shock and arc flash eye injury, which necessitated hospital treatment. The hospital records have not been put into evidence by either party.
Ms Kenney stated that after the applicant was deemed fit for work and discharged from hospital later that day, he returned to work and completed a statement regarding the incident. Ms Kenney stated that, after a few days off work, the applicant did attend work on
31 March 2020, when he was able to carry out his normal duties without restrictions. However, there is no evidence that the applicant performed work for the respondent after that time. The applicant’s evidence is that he was unable to return to work due to the eye injury and pain in his hip. Ms Kenney stated that the applicant ceased to work for the respondent on 12 April 2020 when his work came to an end.I give little weight to evidence that the applicant was involved in “partying” because, even if it was accepted, it has no specific relevance to the disputed injuries. Further, having regard to the evidence as a whole, and considering it in the context of the applicant’s shock and psychological condition, I do not consider that it is persuasive evidence that the applicant should have had the presence of mind to report the disputed injuries at an earlier time.
There is consistent medical evidence that that the applicant experienced significant ongoing psychological injury, in the nature of post-traumatic stress disorder, in addition to ongoing eye injury. Indeed, the insurer has accepted post-traumatic stress disorder and bilateral eye injury (arc flash).
Considering the evidence as a whole, I am satisfied that the absence of contemporaneous complaints of injury to the applicant’s lumbar spine, cervical spine or right shoulder and the delay in reporting relevant symptoms can be explained by evidence that:
(a) the applicant was initially seriously impacted by shock and acute eye injury which were a primary focus of treatment, and
(b) the applicant was subsequently significantly affected by post-traumatic stress disorder caused by the explosion.
The applicant’s significant delay in reporting symptoms and seeking treatment in relation to the disputed injuries can also be considered in the context that, as noted by Dr Hilton,[99] the applicant did not seek treatment from an ophthalmologist in relation to his accepted bilateral arc flash eye injury until September 2020 because “he thought his eyes would get better”.
[99] Report of Dr Hilton dated 13 January 2021: ARD, page 18.
The disputed injuries are consistent with a mechanism of injury of an explosion which caused the applicant to be thrown backwards about 1m into an immovable object, with the applicant’s right hip being the significant point of contact. That is accepted by both Dr Bodel and Dr Robinson.
In addition, when one considers all the evidence in context and the sequence and timing of reporting of various symptoms by the applicant, I consider that it is a likely possibility that symptoms in relation to the disputed injuries may have developed and taken on a greater degree of importance to the applicant over time.
There is no evidence of any relevant pre-existing injury nor any other mechanism of injury.
Considering the evidence as a whole, and notwithstanding some difficulties with the evidence, I find the applicant’s evidence compelling. On that basis, I am satisfied that, the applicant sustained injury to his cervical spine, lumbar spine and right shoulder from a work incident on 26 March 2020 when an explosion caused the applicant to be thrown backwards approximately 1m against a switchboard.
Further, I am satisfied that the reported history and symptoms recorded by Dr Bodel and
Dr Robinson, which formed the basis of their respective reports, was truthful and accurate.I note that Dr Bodel and Dr Robinson did not find any relevant radiculopathy. However,
Dr Bodel and Dr Robinson considered relevant material and their respective findings on examination of the applicant in addition to the reported history and symptoms. I accept that Dr Bodel and Dr Robinson did not simply accept the applicant’s reports regarding the injuries, but they turned their minds to and actively addressed specific questions regarding causation, including the statutory test of whether employment was a substantial contributing factor to the injuries, and assessment of WPI in the context of any non-work related causal factor or any other pre-existing or subsequent injury. Having regard to all the evidence, I consider that the conclusions of Dr Bodel and Dr Robinson are reasonable in the circumstances.Accordingly, I find the evidence of Dr Bodel and Dr Robinson compelling and I accept their evidence in relation to diagnosis of the disputed injuries and the issue of causation.
On that basis, I am satisfied that the applicant sustained soft tissue injury to his lumbar spine, cervical spine and right shoulder, with no evidence of radiculopathy, as a result of the explosion on 26 March 2020 and that the applicant’s employment was a substantial contributing factor to the injuries.
On that basis, I find that on 26 March 2020, the applicant sustained soft tissue injury to his lumbar spine, cervical spine and right shoulder, with no evidence of radiculopathy, arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act, to which the applicant’s employment was a substantial contributing factor pursuant to
s 9A(1) of the 1987 Act.
Did the applicant meet the threshold imposed by s 66(1) of the 1987 Act?
As stated above, the respondent accepts the following injuries:
(a) arc flash – both eyes;
(b) right hip strain with bruising, and
(c) post-traumatic stress disorder.
In the circumstances, and given my findings above, it is appropriate to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI in respect of all physical injuries on 26 March 2020.
SUMMARY
The applicant sustained injury to his lumbar spine, cervical spine and right shoulder on
26 March 2020 arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act.The matter is remitted to the President to be referred to a Medical Assessor for an assessment of WPI in respect of the cervical spine, lumbar spine, right upper extremity (shoulder), right lower extremity (hip) and visual system, in respect of injury on
26 March 2020.
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