McGregor v R Campbell & Sons Pty Ltd
[2022] NSWPIC 140
•4 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | McGregor v R Campbell & Sons Pty Ltd [2022] NSWPIC 140 |
| APPLICANT: | Mark McGregor |
| RESPONDENT: | R Campbell & Sons Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 4 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims permanent impairment compensation resulting from injury he sustained to his left lower extremity and alleged consequential injury to his lumbar spine; alleged consequential injury to the applicant’s lumbar spine and level of impairment resulting from workplace injury sustained placed in issue; Held– the applicant has sustained consequential injury to his lumbar spine; the applicant’s claim for permanent impairment compensation resulting from injury to his left lower extremity and lumbar spine is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. By consent, the Application to Resolve a Dispute is amended to plead the date of injury as 17 July 2018. 2. The applicant sustained consequential injury to his low back as a result of the injury he sustained to his left leg in the course of his employment with the respondent on 17 July 2018. 3. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury he sustained to his left lower extremity on 17 July 2018 and consequential injury to his lumbar spine, as agreed or determined by the Commission, is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment. 4. The following documents are to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons: a. Application to Resolve a Dispute and attached documents, and b. Application to Admit Late Documents dated 7 March 2022 lodged on behalf of the respondent and attached documents. |
STATEMENT OF REASONS
BACKGROUND
At the time the applicant, Mark McGregor (Mr McGregor) sustained injury to his left leg on 17 July 2018 he was working as a sawmiller with the respondent, R Campbell & Sons Pty Ltd (Campbell & Sons). Mr McGregor is currently 38 years of age.
In these proceedings Mr McGregor claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) resulting from the injury he sustained to his left leg in the incident occurring on 17 July 2018 and alleged consequential injury to his low back.
Mr McGregor’s claim for permanent impairment compensation is declined and he has been issued with notices dated 6 July 2020[1] and 26 August 2020[2] in which he has been advised of the decision to decline his claim. Campbell & Sons dispute Mr McGregor has sustained consequential into his low back and also dispute he has reached the threshold prescribed by s 66 of the 1987 Act.
[1] Application to Resolve a Dispute (ARD) at pp 5 and 8.
[2] ARD at p 12.
ISSUES FOR DETERMINATION
The parties agree the following issues remain in dispute:
(a) whether Mr McGregor has sustained consequential injury to his low back resulting from injury he sustained to his left leg on 18 July 2018, and
(b) the level of permanent impairment sustained by Mr McGregor resulting from injury he sustained on 18 July 2018.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
Mr McGregor’s claim for permanent impairment compensation came before me for teleconference on 11 March 2022. Mr Narsimullu appeared in the interests of Mr McGregor and Ms McPhan appeared in the interests of Campbell & Sons. Ms Iacono, a representative of the insurer was present. Mr McGregor was present. Despite some time being spent attempting to resolve Mr McGregor’s claim at teleconference, resolution was not achieved.
With Mr McGregor’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 31 March 2022. Mr Barter of counsel appeared in the interests of Mr McGregor, instructed by Ms McPhan. Ms Balendra of counsel appeared in the interests of Campbell & Sons, instructed by Ms McPhan. Mr Rafferty, a representative of the insurer was present. Mr McGregor was present.
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
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents,
(b) Application to Admit Late Documents dated 7 March 2022 lodged on behalf of Campbell & Sons and attached documents (AALD),
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statement of Mr McGregor
Mr McGregor provided a statement dated 13 November 2021[3]. He described his “pre-injury health” in terms of being “quite fit and active” and said “I went to the gym and did boxing and weights and cycling”. However, he did explain:
“In 2017, I complained about back pain to my GP. I was doing heavy work and using heavy equipment such as chainsaw and whipper snipper and one day after work I felt soreness in my back. I asked my partner to rub voltaren on my back. I had a couple days off and the pain lasted a few days and the GP gave me pain killers. I recovered from this back pain and felt slight soreness on rare occasions. I felt a niggle or a twinge but mostly I took care of myself and I continued working as normal and continued with my fitness”.
[3] ARD at p 1.
Mr McGregor described the incident occurring on 17 July 2018 in which he sustained injury to his left leg in the nature of fractures to his medial tibial plateau and fibula. Relevant to medical management of his injury, Mr McGregor said:
“I was fitted with a range of motion brace and given crutches to mobilise. I was advised not to put any weight on my left leg for about five months”.
Mr McGregor said that about one or two months after he left hospital he started to notice pain in his back, which he described as “shooting pain coming from my back and going down into my leg”.
After five months Mr McGregor’s left leg was still in a brace and he was using a walking stick. He explained he felt pain in his low back when walking and complained to his treating physiotherapist about this low back pain.
After about six months, Mr McGregor’s leg brace was “unlocked” and he said while he was able to improve his range of motion he remained unable to weight bear on his left leg “for a further three or four months”.
Mr McGregor said that as a result of the pain in his left leg and being in a brace “I was always limping and this caused my back pain to worsen”. He explained:
“Since my work injury and the limping my lower back gradually became more constant. I now experience aches and pains and I was referred to have cortisone injections in my back”.
Mr McGregor said he continues to walk with a left-sided limp.
Treating medical evidence
Grafton Base Hospital
The clinical records of Grafton Base Hospital[4] relevant to the injury Mr McGregor sustained in the incident occurring on 17 July 2018 confirm Mr McGregor sustained a crush injury to his left leg in the incident with diagnostic imaging demonstrating fracture to the medial tibial plateau and the head of the fibula. Mr McGregor was fitted with a brace, which was initially locked at 0 degrees by the physiotherapist. “Past illness” recorded on Mr McGregor’s presentation does not include low back complaint.
[4] ARD at p 30.
The certificate of capacity issued by the hospital on 18 July 2018[5] described planned management of Mr McGregor’s left leg injury in terms of “non-weight bearing & brace” during a period of 6-12 weeks and physiotherapy treatment.
[5] AALD at p 18.
Dr Tack Shin Lee
Mr McGregor came under the orthopaedic care of Dr Lee relevant to the injury he sustained to his left knee. From a medical certificate issued on 5 December 2018[6] it appears that Dr Lee is a Visiting Medical Officer (VMO) at Grafton Base Hospital. A number of medical certificates issued by Dr Lee are before the Commission[7] and none make mention of any problem Mr McGregor has with his low back.
[6] AALD at p 12.
[7] AALD commencing at p 11.
In a medical certificate issued on 12 September 2018 Dr Lee described medical management of Mr McGregor’s left leg injury in terms of “6 wks non weight bear + 6 wks partial weight bear”. While in a medical certificate issued on 5 December 2018, Dr Lee did include a medical management plan and certified Mr McGregor fit to work, such certification was restricted to suitable duties with review on 30 January 2019. No further medical certificates issued by Dr Lee are before the Commission.
Movement Logic Physiotherapy
Mr McGregor received physiotherapy treatment from Kevin Hansell at Movement Logic. The clinical records of Movement Logic[8] confirm Mr McGregor was referred for treatment by Dr Lee with initial assessment on 13 September 2019. It is evident from the clinical records that Mr McGregor remained significantly troubled by his left knee for some considerable time after the incident occurring with pain questionnaires completed by Mr McGregor on 11 October 2019 and 18 February 2020. When last reviewed by Mr Hansell on 13 March 2020, Mr Hansell reports “no change in pain continues same exs”.
[8] ARD at p 39.
Mr Hansell also relevantly noted 18 February 2020:
“Knee hasn’t changed. Had an episode of sciatic pain last November which lasted for about 4 – 6 weeks. Leg pain has gone but still has back pain. Every night if doesn’t lay down and crack his back it hurts… Pains in L knee are the same…Walking is the main aggravator of the pain…”.
Independent medical evidence
Dr Bodel
Mr McGregor was initially orthopaedically assessed on 13 August 2019 by Dr Bodel in his capacity as independent medical examiner. Dr Bodel provided a report dated 15 August 2019[9]. At the time of initial assessment Dr Bodel noted Mr McGregor had been troubled with “intermittent lower back pain in the past but nothing serious”.
[9] ARD at p 16.
Dr Bodel provided a history of the fracture injury Mr McGregor sustained to his left leg on 17 July 2018 and relevant to medical management, he wrote:
“… he was put into a range of motion brace. The brace was locked at 25 to 30 degrees of flexion and after a period of time he was given crutches and discharged home. He remained non-weight bearing for at least forum and a half to five months and he was discharged home.
At the six month mark he was able to unlock the brace and improvement of his range of movement over time but he stayed immobilised for three to four months”.
On examination, Dr Bodel said of Mr McGregor:
“He does walk with a pronounced left-sided limp but has no walking stick or crutches.”
It is apparent that at the time of assessment Dr Bodel had available to him the hospital records of Grafton Base Hospital, in that he wrote:
“The hospital record in the outpatients department is also consistent with his clinical presentation and the local doctor’s continuation notes confirm the ongoing treatment in this circumstance”.
Dr Bodel wrote in response to specific questioning about treatment:
“He has had appropriate treatment. The fractures have been treated conservatively and clinically they have healed although he still has pain. He is still under review with his treating orthopaedic surgeon”.
Dr Bodel noted when providing assessment of the degree of permanent impairment sustained by Mr McGregor relevant to his left knee injury that Mr McGregor suffered painful retro patellar crepitus, quite marked pain on resisted knee extension and some weakness of resisted knee extension.
In a subsequent report dated 4 November 2019[10] Dr Bodel said that he had reviewed him briefly that day “in regards his lower back”. Dr Bodel reported:
“Today he indicates that he did begin to develop lower back pain while slowly recovering from the fracture. He had a very abnormal gait pattern for a long period of time and he had difficulty going up and down stairs.
He still has back pain and has just had an injection of cortisone. He has had some physiotherapy”.
[10] ARD at p 24.
Dr Bodel noted Mr McGregor had previously reported past intermittent lower back pain, which Mr McGregor had described as “nothing serious”, and wrote:
“After this accident to the left leg however, he has now developed quite significant persisting back complaints”.
On examination, Dr Bodel said of Mr McGregor:
“He still has the pronounced left sided limp”.
Dr Bodel provided opinion Mr McGregor had developed a consequential low back injury resulting from “the continuing abnormal gait pattern following the injury to the left leg”.
In his supplementary report dated 23 March 2021, Dr Bodel noted Mr McGregor’s claim for permanent impairment compensation had been declined with reliance placed on opinion provided by Dr Stephen in his capacity as independent medical examiner, and confirmed:
“The history given to me was that the back pain deteriorated because of the abnormal gait pattern and he was still experiencing a significant limp at the time I assessed him”.
With reference to the “local doctor’s notes”, which he had previously reviewed, and also Dr Stephen’s report (discussed below), Dr Bodel wrote:
“… in my view there has been aggravation, acceleration, exacerbation and deterioration of some underlying degenerative disc disease at the lumbosacral junction caused by the abnormal gait pattern following the injury to the leg and that is the reason why I have included the lumbar spine in the assessment”.
Dr Stephen
Mr McGregor was orthopaedically assessed on 5 June 2020 by Dr Stephen in his capacity as independent medical examiner. Dr Stephen provided a report dated 12 June 2020[11]. At the time of assessment, Dr Stephen had available to him Dr Bodel’s initial report, but not his subsequent reports. Dr Stephen noted a history of the incident occurring on 17 July 2018, and noted too Mr McGregor’s unsuccessful return to his pre-injury employment and difficulty with work at an alternate sawmill as “he found the work too heavy for his left knee”. At the time of assessment, Mr McGregor had secured employment working in fencing. Dr Stephen noted a past history of intermittent backache, which “was not disabling”.
[11] AALD at p 5.
Dr Stephen noted medical management of Mr McGregor’s left knee injury in terms of being placed into a range of motion brace “which he wore for several weeks”, being provided with crutches, discharged home “non weight bearing for approximately 4 months” and returning unsuccessfully to suitable duties after approximately five months.
Mr McGregor presented with complaint of pain in his left knee. He explained to Dr Stephen he limped “intermittently” which:
“he believes, has produced an increase in his back pain, although at present he has little and his pain is now slight and intermittent. At one stage his back ached to the extent that he was given an injection at Grafton Hospital, which he believed helped him”.
On examination, Dt Stephen said of Mr McGregor:
“He walked with a slight left antalgic limp and wore a removable brace”.
Dr Stephen noted that Mr McGregor had recently commenced physiotherapy treatment, but this had ceased with the emergence of COVID-19.
Dr Stephen noted Mr McGregor had suffered “periodic backache” that as present prior to the incident occurring on 17 July 2018, and relevantly provided diagnosis:
“There was no injury to the lumbar spine. He does have intermittent mechanical back pain which is not related to the accident or to the subsequent minor limp, which I suspect but cannot prove, is occasional”.
Submissions
Ms Balendra and Mr Barter made oral submissions, which I have considered. A recording of counsels’ submissions is available to the parties.
Determination
Consequential injury to the low back
Liability is not disputed for the injury Mr McGregor sustained to his left leg on 17 July 2018 in the course of his employment with Campbell & Sons. However, liability is disputed for the consequential injury Mr McGregor alleges he sustained to his low back.
Mr McGregor has the onus of proving he sustained consequential injury to his low back as result of the injury he sustained to his left leg on 17 July 2018 in the course of his employment with Campbell & Sons. This is a question of fact in this matter and consideration of Mr McGregor’s evidence and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[12] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[12] [2008] NSWCA 246.
With allegation by Mr McGregor that the injury he has sustained to his low back is in the nature of a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[13] Deputy President Snell relevantly discussed consequential injury, and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012]. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within section 4 of the 1987 Act.”
[13] [2016] NSWWCCPD23.
In the circumstances of this matter it is important to recognise the injury Mr McGregor sustained to his left leg in the course of his employment with Campbell & Sons may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to his left shoulder. In Kooragang Cement Pty Ltd v Bates[14], Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[14] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Mr McGregor said that prior to the incident occurring on 17 July 2018 he had suffered back pain in 2017, about which he had complained to his general practitioner and for which he had been provided with pain killers and “had a couple of days off”. Mr McGregor said although he had recovered from this episode of back pain, he “felt soreness on rare occasions”. However, he continued working as normal and continued with his fitness, which included gym, boxing, weights and cycling. On assessment on 13 August 2019, Mr McGregor told Dr Bodel he had been troubled by intermittent back pain in the past “but nothing serious”. Dr Bodel again noted this past history of intermittent back pain on re-assessment on 4 November 2019. On assessment on 5 June 2020 Dr Stephen too noted a past history of intermittent back ache, which “was not disabling”.
It is evident Mr McGregor was significantly troubled by his left leg after the incident occurring on 17 July 2018 in the course of his employment with Campbell & Sons. When Mr McGregor attended hospital on the day of the incident, his leg was placed in a brace and the initial certificate of capacity issued by the hospital anticipated Mr McGregor would remain in the brace and be non-weight bearing for up to a 12-week period. However, on 10 October 2018 (being 12 weeks later) Dr Lee issued a certificate of capacity that included a medical management plan which saw Mr McGregor non-weight bearing for a further six weeks and partial weight bearing for further six weeks after that. It would seem then that Dr Lee did not anticipate Mr McGregor would be fully weight bearing until early in 2019, being some five months since he sustained injury.
Mr McGregor explained that even after this five month period, his left leg remained in the brace and he was using a walking stick. He said it was not until the six months’ mark that the brace was unlocked. While the removal of the brace allowed Mr McGregor to improve his range of movement, Mr McGregor said he remained unable to weight bear for a further three to four months.
When Dr Bodel initially assessed Mr McGregor on 13 August 2019, while Mr McGregor was weight bearing, Dr Bodel described Mr McGregor as walking with a pronounced left sided limp. Dr Bodel noted too that Mr McGregor remained under the orthopaedic care of Dr Lee. Mr Hansell initially assessed Mr McGregor one month later, on 13 September 2019, and despite physiotherapy treatment it is evident from Mr Hansell’s clinical records that Mr McGregor remained troubled by his left knee at the time he ceased physiotherapy treatment on 13 March 2020 due to the COVID-19 pandemic.
When Dr Bodel re-assessed Mr McGregor on 4 November 2019 , Dr Bodel again described Mr McGregor as walking with a pronounced left sided limp, and when Dr Stephen assessed Mr McGregor some seven months later on 5 June 2020, Dr Stephen described Mr McGregor as wearing a removable brace and walking with a slight antalgic limp.
While there is an absence of documentary evidence of complaint of low back symptoms by Mr McGregor to any general treating doctors or his treating specialist, Mr McGregor said he started to notice pain in his back “about one or two months after he left hospital”. Mr McGregor described his pain as “shooting pain coming from my back and going down into my leg”. In his physiotherapy records, Mr Hansell noted on 18 February 2020 that Mr McGregor had suffered an episode of sciatic pain in November 2019, which lasted for about four to six weeks. While Mr Hansell noted Mr McGregor’s sciatic pain had ceased, he noted Mr McGregor’s back pain remained.
I do not know when it was exactly that Mr McGregor first experienced intensifying back pain following the incident occurring on 17 July 2018. However, noting there was no complaint of back pain when Mr McGregor was assessed by Dr Bodel in August 2019 (at which time Mr McGregor remained under the orthopaedic care of a VMO at the hospital) but there was complaint of back pain when he was re-assessed by Dr Bodel in November 2019 and record by Mr Hansell that Mr McGregor had suffered an episode of back pain with sciatic pain in November 2019, I am comfortably satisfied Mr McGregor’s low back became more symptomatic in or about November 2019, being a time when he continued to be significantly troubled by his left knee and was observed by Dr Bodel in August 2019 and November 2019 to be walking with a “pronounced left sided limp”.
Following a review of the evidence as a whole and careful consideration of counsel’s submissions, I am of the view Mr McGregor has provided a consistent history of injury occurring on 17 July 2018 and sequelae, including symptoms in his low back becoming more intense with his left sided limping. I accept Mr McGregor has discharged the onus of proof required of him and I am comfortably satisfied Mr McGregor has sustained consequential injury to his low back as a result of the injury he sustained to his left leg on 17 July 2018 in the course of his employment with Campbell & Sons.
I prefer the independent medical examiner’s opinion provided by Dr Bodel to that provided by Dr Stephen. Dr Bodel has had the opportunity to asses Mr McGregor on two occasions and has also had the opportunity to review opinion provided by Dr Stephen, whereas Dr Stephen has only had the opportunity to asses Mr McGregor on one occasion and it is not apparent he has been provided with the opportunity to review opinion provided by Dr Bodel relevant to Mr McGregor’s alleged consequential low back injury. Moreover, Dr Bodel has had the opportunity to review and consider the “local doctors notes” whereas it is not apparent Dr Stephen has been provided with the opportunity to review and consider these notes.
Permanent impairment
Liability is not disputed for the injury Mr McGregor sustained to his left leg on 17 July 2018 in the course of his employment with Campbell & Sons and I have determined Mr McGregor sustained consequential injury to his low back as a result of the injury he sustained to his left leg.
I consider it appropriate that the following documents be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents, and
(b) AALD dated 7 March 2022 lodged on behalf of Campbell & Sons and attached documents.
SUMMARY
It is not disputed Mr McGregor sustained injury to his left leg on 17 July 2018 in the course of his employment with Campbell & Sons and I have determined Mr McGregor sustained consequential injury to his low back as a result of the injury he sustained to his left leg.
Mr McGregor’s claim for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury he sustained to his left lower extremity on 17 July 2018 in the course of his employment with Campbell & Sons and consequential injury to his lower back is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
The following documents are to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents, and
(b) AALD dated 7 March 2022 lodged on behalf of Campbell & Sons and attached documents.
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