Lindenberg v The Northern Rivers Conservatorium Arts Centre Inc
[2023] NSWPIC 517
•29 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Lindenberg v The Northern Rivers Conservatorium Arts Centre INC [2023] NSWPIC 517 |
| APPLICANT: | Sally Lindenberg |
RESPONDENT: | The Northern Rivers Conservatorium Ats Centre Inc |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 29 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sought a finding that she had suffered consequential injuries to her thoracic spine and both upper extremities (shoulders) following a frank injury to her cervical spine; the claim was unsuccessful; consideration regarding the absence of any history of complaint to or investigations by treating doctors concerning the alleged consequential injuries from the date of injury until consultation with an Independent Medical Examiner arranged by the applicant’s representative; Held – there was no consequential injury to the applicant’s thoracic spine and upper extremities (shoulders) following a frank injury to the applicant’s cervical spine on 3 February 2020; award for the respondent in relation to these alleged injuries. |
| DETERMINATIONS MADE: | The Commission determines: 1. There was no consequential injury to the applicant’s thoracic spine and upper extremities (shoulders) following a frank injury to the applicant’s cervical spine on 3 February 2020. There will be an Award for the respondent in relation to these alleged injuries. 2. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant was injured on 3 February 2020 whilst in the employ of the respondent as a music program coordinator. She was leaving the Conservatorium carrying various materials when, whilst walking down some steps, she misjudged a step, jarred her neck and experienced immediate pain on the right side of her neck.
ISSUES FOR DETERMINATION
This is a claim pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) for consequential injuries following a frank injury. There is no allegation of a disease. Liability in relation to the applicant’s cervical spine injury was accepted. The applicant now makes a claim, pursuant to s 66 of the 1987 Act, for whole person impairment arising from a cervical spine injury and consequential injuries to her thoracic spine and both upper extremities (shoulders).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered by me in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to Application for Resolution of Dispute (Reply) and attached documents, and
(c) Application to Admit Late Documents and attachments.
RELEVANT LEGISLATIVE PROVISIONS
The Workers Compensation Act 1987
“Section 4
Definition of ‘injury’ (cf former s 6 (1))
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.”
(my emphasis)
CONSIDERATION
The applicant’s submissions
The applicant was injured on 3 February 2020 when she misjudged a step and jarred her neck. The applicant has a long history of involvement in the music industry. Prior to her commencing work with the respondent she had been conducting her own business as a musical instrument repairer. She resigned her employment with the respondent on
23 March 2020. Since her resignation she has been working part time as an instrument repairer in her own business and as a performer. She has been undertaking both of these activities in a more limited fashion than was able to prior to her injury. She is also working part time as a teacher’s aide at a local primary school.The applicant is seeking referral to a Medical Assessor for assessment of whole person impairment in relation to the injury to her cervical spine as well as alleged consequential injuries to her thoracic spine and both upper extremities (shoulders).
The applicant relies on the report of Independent Medical Examiner Dr Medhat Guirgis dated 18 March 2022 an extract from which is set out below;
“DIAGNOSIS
The 3-2-2020 incident resulted in an injury to the cervical area of the spine in the form of musculoligamentous sprain \ strain with C5-6 and C6-7 intervertebral disc involvement. In the studies performed on 13-2-2020 there was MRI evidence of a central posterior annular tear associated with a central posterior disc protrusion extending backwards to cause minor effacement of the ventral surface of the thecal sac at the C5-6 level. There was also MRI evidence of a posterior intervertebral disc extrusion with minimal effacement of the thecal sac at the C6-7 level.
In the way of causation, one should note that the ground force reaction to the sudden dipping with her foot, would have exposed the intervertebral discs at these levels to sudden abnormal stress loading while they were rendered vulnerable by turning the lordotic cervical curve while carrying the weight of the head. The response to this painful exposure was the acute torticollis noted by the chiropractor on 4-2-2020 indicating spasms of the sternocleidomastoid, trapezius, and other neck muscles. The muscular elements in her injury complex are essential to explain the consequential effects noted in her upper back and in her shoulders.
For the consequential problems in her shoulders, one should note that the post-traumatic dysfunction of the trapezius muscle, particularly of its upper component, would result in abnormal scapulohumeral rhythm, contributing to the shoulder restrictions. In general, greater scapulothoracic motion and less glenohumeral motion was observed following muscle fatigue.
The altered scapular kinematics have been identified in patients presenting with neck pain.
With the onset of neck pain induced fatigue, the shoulder joint complex would demonstrate more upward and external rotation of the scapula, more clavicular retraction, and less humeral
external rotation during arm elevation. The relevant studies imply that superior humeral
migration is the dominant fatigue-related mechanism associated with such consequential problem to the painful neck syndrome. The studies in the literature showed that all muscles with the exception of the lower trapezius showed EMG signs of fatigue, the most notable being the infraspinatus and deltoid muscles.
For the consequential thoracic component of her symptom complex, one must note that the thoracic spine functions as a supporting base for the cervical spine and influences the cervical kinematics through the cervicothoracic junction. Concomitant thoracic spine motion is necessary to produce the complete range of movements at the cervical spine, which are often reduced in the chronic neck pain syndrome. Owing to this close anatomical link, any mechanical dysfunction in the thoracic spine might produce associated changes in the cervical spine and
vice versa. There are many spinal muscles originating from the capitis and cervical spine and extending to attach themselves to the upper half of the thoracic spine including the splenius, the
semispinalis, the longissimus, and more superficially the trapezius and the levator scapulae.
Thoracic thrust and no thrust mobilisations have been shown to produce positive effects on the severity of neck pain, neck movements, and self-reported disability. However, a systematic review
reported conflicting results regarding the benefits of thoracic spine treatment in the management
of neck pain.”
(my emphasis)
The respondent’s submissions
The respondent relies on the report of Independent Medical Examiner Dr Simon Kinney dated 7 December 2022, extracts from which are set out below;
“INVESTIGATIONS
An MRI scan of the spine was performed on 12 February 2020. There was some
straightening of the cervical and upper thoracic spine, consistent with muscle spasm.
The findings reported were of:
“A minimal posterior disc bulge at C3/4, a normal appearance at C4/5, a small
posterior central disc extrusion with an annular tear at C5/6, although this does not
impinge upon or displace the adjacent spinal cord or exiting nerve roots, a small
posterior disc extrusion at C6/7 with no canal or foraminal narrowing, and small
coincidental bilateral perineural cysts within the nerve root exit foramina at C7/T1.”
OPINION
Ms Lindenberg jarred her neck when she misjudged a step on 3 February 2020. It is
likely that she sustained an annular tear of the C5/6 disc at this point in time. Since
then, she has had some neck pain, which has interfered with her ability to fully
perform as a musician and also to enjoy some leisure time activity.
Ms Lindenberg has multiple jobs and continues to perform all of these, except the
one in which she was originally hurt. I note she also complains of tightness low down
in the lumbar region, but this is almost certainly unrelated to the cervical spine injury.
She has never had investigation of her lumbar region. It is likely that she has
coincidental early degenerative spondylosis in the lower lumbar region.
Ms Lindenberg now undergoes self-funded treatment, including osteopathic
treatment and regular massages, which are designed to make her feel
symptomatically better, but not to permanently resolve her condition.
Ms Lindenberg does not require ongoing formal orthopaedic treatment for her
cervical spine injury.
…….
I do not consider Ms Lindenberg displayed or exhibited any behaviours which might
be inconsistent or exaggerated, having regard to the history taken.
………..
The diagnosis for Ms Lindenberg is likely to be an annular tear of the C5/6 disc,
sustained on the day of injury, 3 February 2020.
…………………………..
I consider that Ms Lindenberg suffered a personal injury to the cervical spine arising
in the course of her employment. It is likely she sustained an annular tear of the
C5/6 disc when she jerked her neck as a result of missing a step.
I therefore consider Ms Lindenberg’s employment to be a substantial contributing
factor to this injury. The annular tear appears acute.”
Dr Kinney disagreed with Dr Guirgis’s diagnosis of an injury to the applicant’s shoulders or thoracic spine. His reasoning is set out below;
“I have read the report of Dr Guirgis carefully. He lists the diagnoses as being a
musculoligamentous sprain of the cervical spine, with C5/6 and C6/7 intervertebral
disc involvement. I agree that there was almost certainly a musculoligamentous
strain, which occurred in conjunction with the C5/6 annular tear. However, it is not
conclusive that the C6/7 disc bulge revealed by the MRI scanning, was acute. In
fact, in my opinion, it is more likely to have been coincidental and chronic.
Dr Guirgis goes on to talk about dysfunction of the shoulders in relation to
scapulohumeral rhythm, as a result of post-traumatic dysfunction of the trapezius
muscle. This does occur initially by way of referred musculoskeletal pain, however, it
tends to settle fully with time when there is no definitive shoulder joint pathology.
Having examined Ms Lindenberg’s shoulders, I found no actual restriction on either
side. This fits with a recovering injury. I note the report from Dr Guirgis is now eight months old.
………………………
I do not consider that Ms Lindenberg has suffered a consequential injury to either
shoulder. She may have initially suffered a restriction of shoulder movement as a
result of referred pain in the trapezius muscle distribution on the right side as a result
of the musculoligamentous sprain injury, which was associated with the work injury
event. However, I am convinced there is no structural damage to either shoulder and
therefore, I do not believe Ms Lindenberg has, given her normal shoulder movement
range, suffered a consequential injury.
………………….
When I examined Ms Lindenberg’s thoracic and lumbar spine, she did not report pain
in the thoracic region, but rather at around the level of L4/5, and there was no
asymmetry of thoracolumbar spinal movement at all. I therefore do not consider that
Ms Lindenberg has suffered a consequential injury to the thoracic spine that is
resulting from the cervical spine injury. Again, she is likely to experience tightness in
the thoracic region due to soreness of the right trapezius muscle, but I do not believe
she has suffered any underlying structural damage to the thoracic spine. It is also
likely that any soreness or tightness in the lumbar spine is coincidental and preexisting
from early degenerative change.”
(my emphasis)
The respondent submitted that the evidence provided by the applicant does not meet the required standard of proof required to discharge the onus. In particular, the respondent relied on the absence of any diagnosis of an injury to the applicant’s thoracic spine or upper extremities (shoulders) in the treating doctor’s notes, any treatment regime or any investigations in relation to those body parts in the treating doctor’s notes and reports.
Conclusion and findings
The applicant’s treating doctors took extensive notes and made diagnostic findings regarding the applicant’s cervical injury. However, apart from a reference to some pain radiating into the applicant’s right arm immediately following the incident which resolved shortly thereafter, there is no evidence of an injury to the thoracic spine or the shoulders of the applicant.
The first medical opinion regarding the possibility of such consequential injuries is provided by Dr Guirgis. I am persuaded that his conclusions amount to a discussion of possibilities not supported by any medical history of the applicant.
I am persuaded by and rely on the opinion of Dr Kinney, supported by his findings on examination. I am not persuaded by the report and conclusions of Dr Guirgis.
I am satisfied and find that the applicant suffered an injury to her cervical spine on
3 February 2020.I am satisfied and find that the applicant did not suffer a consequential injury to her thoracic spine or either of her upper extremities (shoulders) on 20 February 2020.
SUMMARY
For the reasons set out above the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
0
0
0