Markovska v State of New South Wales (NSW Health Pathology)
[2023] NSWPIC 123
•27 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Markovska v State of New South Wales (NSW Health Pathology) [2023] NSWPIC 123 |
| APPLICANT: | Ivana Markovska |
| RESPONDENT: | State of New South Wales (NSW Health Pathology) |
| Member: | Phillip Young |
| DATE OF DECISION: | 27 March 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Accepted claim for lumbar spine, hypertension and scarring; consequential conditions to left shoulder (doing hydrotherapy) and gastrointestinal (medication) disputed; Held – award in favour of the applicant in respect of consequential left upper extremity condition and upper and lower intestinal conditions; matter remitted to President of the Personal Injury Commission for referral to Medical Assessors for whole person impairment assessments for these and other accepted injuries and conditions. |
| determinations made: | 1. The applicant on 4 February 2014 suffered injury to her lower back (lumbar spine) resulting in consequential conditions in the nature of injury to her left upper extremity (left shoulder) and a gastrointestinal condition (upper and lower gastrointestinal tracts) as well as TEMSKI scarring (lower back and breasts) and hypertension. 2. The matter is remitted to the President for referral to Medical Assessors to determine the extent of the applicant’s whole person impairment, if any, which results from the following injuries and consequential conditions with the date of injury 4 February 2014: (a) injury to the applicant’s lumbar spine; (b) TEMSKI scarring in respect of the applicant’s surgery to her lumbar spine and breast reduction surgery; (c) hypertension; (d) consequential condition in respect of the applicant’s left upper extremity (left shoulder), and (e) consequential gastrointestinal condition including both the upper gastrointestinal tract and the lower gastrointestinal tract. 3. The President’s delegate is requested to place before the Medical Assessors copies of the Application to Resolve a Dispute lodged on 8 November 2022, the Reply lodged on |
STATEMENT OF REASONS
BACKGROUND
Ivana Markovska (the applicant) is a 46-year-old lady who was employed by State of New South Wales (the respondent) as a pathology technical assistant. The applicant alleges a frank personal injury on 4 February 2014 resulting in injury to her lumbar spine, left upper extremity (left shoulder), hypertension, digestive condition and scarring. The scarring relates to both back surgery and breast reduction surgery, both of which are undisputed.
The applicant brings a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) claiming whole person impairment in respect of her lumbar spine, left upper extremity, gastrointestinal condition, cardiovascular system and TEMSKI/ scarring.
The applicant began seeing Dr McKechnie in about mid-2014 and ultimately underwent surgery in the nature of lumbar spine discectomy and laminectomy at his hands on
21 November 2017.Initially conservative treatment was administered. After application to the then Workers Compensation Commission (Commission) the applicant was referred to Medical Assessor Ryan by which time the applicant was in the early stages of pregnancy. Following the birth of her child the applicant returned to Dr McKechnie.[1]
[1] Applicant’s statement at Application page 8 at [8.18].
The applicant came to further arbitration in the Commission on 3 October 2017. The then insurer, QBE, agreed to voluntarily meet the costs of the proposed lower back surgery. That surgery occurred on 21 November 2017.
ISSUES
There appear to be no issues concerning the lumbar spine nor hypertension nor scarring, only issues relating to the applicant’s left upper extremity consequential condition and alleged digestive (gastrointestinal) condition consequential to the medication taken by the applicant.[2]
[2] See applicant’s submissions at [5].
PROCEDURE BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing on 25 January 2023 by audio-visual link. Mr T Hickey of counsel instructed by Mr Z Gabriel, solicitor, appeared for and with the applicant.
It became apparent at the outset of proceedings that Mr Grimes, counsel, who was due to appear for the respondent had become unwell that morning and accordingly Ms Singh, solicitor, appeared for the respondent in company with Ms Mallard from QBE.
On 25 January 2023 documents the subject of the respondent’s Application to Admit Late Documents filed 13 December 2022, including the respondent’s Reply and attachments were admitted into evidence. Additionally, liberty was granted to the parties to lodge and serve within seven days an Application to Admit Late Documents attaching medical records of Alliance Medical Centre. Those documents were lodged on 25 January 2023 and are admitted into evidence.
In the absence of Mr Grimes, Mr Hickey agreed that the matter could be the subject of written submissions. Directions were made as follows:
(a) applicant’s written submissions by 2 February 2023;
(b) respondent’s written submissions by 9 February 2023;
(c) applicant’s submissions in reply by 16 February 2023, and
(d) thereafter the matter to be determined “on the papers”.
The applicant’s written submission were in fact received on 10 February 2023.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute lodged on 3 November 2022 and attachments (Application);
(b) Reply lodged on 13 December 2022 and attachments (Reply), and
(c) Application to Admit Late Documents and attached medical records of Alliance Medical Centre lodged on 25 January 2023.
The applicant filed written submissions on 10 February 2023 and the respondent on
21 February 2023.
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
The left shoulder
The parties appear to agree upon the matters in dispute.[3] The applicant has correctly identified the relevant law concerning consideration of consequential conditions and this is also not disputed by the respondent.
[3] See respondent’s submissions at [1] and [2].
The applicant in its submissions claims that Dr Machart “fails to grapple with the MRI scan” for a number of reasons. First, that this scan of 31 August 2018 concerning the applicant’s left shoulder is reported as having no record of structural disruption. Second, although
Dr Machart notes radiating pain from the applicant’s back into her left shoulder connected with hydrotherapy, Dr Machart concludes that this is “unlikely to be related to a substantial or structural injury”.[4][4] Reply at [45].
It would seem to me that Dr Machart’s need to find “a substantial or structural injury” may be misplaced. I say this because the relevant law concerning consideration of consequential conditions (which both parties accept) requires only that the original injury (namely lumbar spine) caused or materially contributed to (in this matter) the hydrotherapy and its consequences. Additionally, Dr Machart is influenced by his view that the applicant is experiencing “pain behaviour”.[5] Dr Ryan also thought there was some evidence of inconsistency.[6] Several other doctors have made observations to different effects.
Dr Truskett regarded the applicant as “cooperative”.[7] Dr Taber observed that the applicant’s “history is reliable” and “she is not feigning her condition”.[8] Her treating doctor, Dr Dixon, on at least two occasions regarded the applicant to be “consistent in presentation”.[9]Dr Greenberg wrote that the applicant “made good eye-contact and answered questions accurately”.[10] I conclude, therefore, that if there is any suggestion concerning the applicant’s credit, honesty or reliability of her evidence raised by the expression “pain behaviour” the preponderance of medical opinion is that the applicant has been a reliable, accurate and honest historian.[5] See for example Reply at page 51.
[6] Application at page 292.
[7] Reply at page 35.
[8] Reply at page 58.
[9] Application at pages 34 and 43.
[10] Application at page 63.
The respondent has submitted[11] that Dr Machart, initially at least, was provided with an incorrect history, particularly in relation to the applicant’s prior left shoulder complaint in 2010. There is no such history in Dr Machart’s report dated 3 October 2019 nor in Dr Dixon’s reports of 9 April 2019 and 14 April 2022. That impingement occurred of course nine years previously and does not seem to generate any ongoing treatment.
[11] Submissions at [7].
Dr Machart was, however, equipped by the time of his report dated 2 November 2022 with the earlier consultation notes in 2010 of the applicant’s general practitioner Dr Ng and earlier reports of Bankstown Physiotherapy in November and December 2010.[12] Dr Machart concludes that the applicant experienced prior impingement of the left shoulder and no consequential condition.[13]
[12] Reply at page 98.
[13] Reply at page 102.
In the applicant’s statement of 10 June 2021 the applicant confirmed that she had been referred for hydrotherapy treatment by Dr McKechnie.[14] The applicant says:
“… the physiotherapist who was assisting me at the time recommended that I go to the end of the pool as the exercise I was doing in the pool itself was aggravating my back. He suggested I … hold on to the metal rail at the edge of the pool with my outstretched arms and then lift my legs up in order to float in the water. Whilst doing that exercise, it put pressure on my shoulders and I felt a sharp pain in my left shoulder … I then went and had a shower and thought the hot water would assist but it did not. After that, the physiotherapist did some massage on my left shoulder to relieve the pain but it did not help … after a few days, I attended upon my GP, Dr Angela Lam, and informed her of the pain in the left shoulder”.
[14] Application at page 7 at [8.19].
Dr Lam in a report of 26 November 2018 confirms that the applicant did sustain a left shoulder injury and underwent hydrocortisone injection in February 2018, as well as hydrotherapy.[15]
[15] Application at page 77.
Dr Dixon in his first report of 9 April 2019 records the post operative physiotherapy and hydrotherapy and the applicant having sustained a left shoulder strain injury.[16] He confirmed this opinion in a further report of 14 April 2022.
[16] Application at page 38.
Dr Machart in his initial reports on examination clearly notes some impingement at the left shoulder. However, in a later report of 2 November 2022 having noted a prior history of a single event in 2010 when the applicant was pushing a bed, changes his opinion to express doubt as to whether the left shoulder condition was a consequential condition.
Whatever be the position with the applicant’s injury in 2010, it is clear that between 2010 and 2012 (when the applicant suffered her back injury) the applicant was able to work, in the latter stages on a permanent part time basis five days per week for four hours per day, sometimes longer.[17] After the lower back injury of 10 August 2012 the applicant was able to return to work working normally from about 22 November 2012 until the incident on
4 February 2014. The effects of the event in 2010 concerning the applicant’s left shoulder clearly did not persist. If the left shoulder condition “recurred” in 2018 at hydrotherapy, it is significant that complaints between 2010 and 2018 are absent.[17] Application at page 4 at [3.4].
In those circumstances and having regard to the applicant’s honesty as an accurate historian I am comfortably satisfied that the applicant in the course of undergoing hydrotherapy treatment for her lower back injury suffered a consequential condition in respect of her left shoulder.
The gastrointestinal condition
The second consequential condition relied upon by the applicant is the applicant’s claim in respect of her gastrointestinal condition. This includes both upper and lower gastrointestinal tracts.
Both Dr Truskett[18] and Dr Greenberg[19] record an extensive list of medication taken by the applicant and the applicant in her statement of 10 June 2021 says as follows:
“Since my work injury, I had have [sic] symptoms in the stomach/ digestive in the form of bloating, acid, reflux and constipation. The symptoms became worse after the surgery as I was taking a stronger pain medication. My GP referred me to a gastroenterologist, Dr Mark Chen, who I saw at Bankstown Hospital in October 2018.”[20]
[18] Report 30 November 2019 at Reply at page 33.
[19] Report 30 April 2019 at Application at page 53.
[20] Application at page 8 at [8.20].
The applicant confirms that Dr Chen recommended an endoscopy which was done at Bankstown Hospital on 7 November 2018. Her symptoms unfortunately continued.
The abstention from medication is referred to by Dr Ryan’s Medical Assessment Certificate of 21 March 2015.The statement by the applicant that her gastrointestinal symptoms “became worse after the surgery” is a statement concerning how she felt after the surgery of 21 November 2017, about two and a half years later. Contrary to the respondent’s submission, therefore, the applicant’s abstention from medication during her pregnancy does not mean that the applicant’s case on causation is not established.
Dr Mill has provided an endoscopy report dated 7 November 2018.[21] In summary, the applicant was noted to have LA Grade A reflux oesophagitis. Whilst Dr Ryan’s assessment noted, as the respondent submits, that the applicant during her pregnancy in 2015 had ceased all medication apart from Panadol,[22] it is notable that the endoscopy occurred November 2018 and in view of the medical evidence concerning the causal connection between the medication and the gastrointestinal condition as well as the applicant’s direct evidence of gastrointestinal problems since her work injury,[23] I accept the applicant’s evidence of gastrointestinal symptoms since her injury. I accept, accordingly, that the applicant suffered consequential conditions in respect of her upper and lower gastrointestinal tracts resulting from consumption of medication following her original lower back injury.
[21] Application at page 85.
[22] Application at page 284.
[23] Application at page 8 at [8.20].
FINDINGS
The applicant on 4 February 2014 suffered injury to her lower back (lumbar spine) resulting in consequential conditions in the nature of injury to her left upper extremity (left shoulder) and a gastrointestinal condition (upper and lower gastrointestinal tracts) as well as TEMSKI scarring (lower back and breasts) and hypertension.
The matter is remitted to the President for referral to Medical Assessors to determine the extent of the applicant’s whole person impairment, if any, which results from the following injuries and consequential conditions with the date of injury 4 February 2014:
(a) injury to the applicant’s lumbar spine;
(b) TEMSKI scarring in respect of the applicant’s surgery to her lumbar spine and breast reduction surgery;
(c) hypertension;
(d) consequential condition in respect of the applicant’s left upper extremity (left shoulder), and
(e) consequential gastrointestinal condition including both the upper gastrointestinal tract and the lower gastrointestinal tract.
The President’s delegate is requested to place before the Medical Assessors copies of the Application lodged on 8 November 2022, the Reply lodged on 14 December 2022, the Application to Admit Late Documents lodged on 25 January 2023 and this Certificate of Determination.
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