Mitchell v Andreco-Hurll Refractory Services Pty Ltd
[2024] NSWPIC 152
•27 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mitchell v Andreco-Hurll Refractory Services Pty Ltd [2024] NSWPIC 152 |
| APPLICANT: | Shaun Mitchell |
| RESPONDENT: | Andreco-Hurll Refractory Services Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 27 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sought a finding that he had suffered consequential injuries to his neck and shoulder whilst undergoing rehabilitation and gym therapy; Held – finding that the applicant’s neck and shoulder symptomatology arose from his underlying degenerative cervical disc disease. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant’s neck and shoulder condition which caused him to have cervical surgery arose out of the degenerative disease of his cervical spine and was not related to an injury in the respondent’s employ. The Commission orders: 2. An award for the respondent |
STATEMENT OF REASONS
BACKGROUND
Mr Shaun Mitchell (the applicant) was employed by Andreco-Hurll Refractory Services Pty Ltd (the respondent).
The applicant suffered a back injury for which he has had significant treatment including surgery. Liability in relation to his back injury has been admitted. The applicant claims a consequential injury to his shoulders and neck which he alleges occurred in the course of receiving rehabilitation treatment for his back injury.
The applicant has had surgery in relation to the alleged consequential injury and seeks reimbursement for the expense of that surgery and ancillary expenses. The respondent does not deny the reasonableness of the treatment the applicant has undergone for this alleged consequential injury but denies any causative link to the original injury sustained in its employ.
MATTERS IN DISPUTE
The causation of the applicant’s neck and shoulder condition is in dispute.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Andrew Joseph of counsel, instructed by Sonya Elenden of Beilby Poulden Costello appeared for the applicant. Mr David Saul of counsel, instructed by Richard Orr of Turks Legal, appeared for the respondent.
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
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before the Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to ARD (Reply) and attached documents, and
(c) Application to Admit Late Documents dated 3 March 2024.
The applicant’s submissions
After spinal surgery in 2013 the applicant engaged in both physiotherapy and a gym program. During one of his gym programs his neck became stiff and painful. He reported this to his gym instructor Ben[1] and his physiotherapist Brian who engaged in conservative treatment methods.[2] He mentioned it also to his general practitioner (GP).[3]
[1] ARD page 3 paragraph18.
[2] ARD page 3 paragraph 19.
[3] ARD page 3 and 4 paragraph 19.
The applicant’s evidence is that he engaged very positively with his rehabilitation program even though some of the exercises were painful;[4]
“4. I complied with the insurer's request as best I could.
5. Because I had been off work for a significant period of time, and because of the back pain, I had lost a lot of strength and muscle.
6. My back was in spasm before the operation and my spine was significantly bent. I tried to hold my head to the left to straighten my spine. The exercises that I was given were difficult and exhausting.
7. I noticed during the exercises that I was sore and I started to feel pain in my right shoulder and the pain went down my ann. I did not think much of this at first because I was in the hands of experienced rehabilitation people and trusted their advice.
8. I was aware that doing the exercises would be painful and that I had to endure some pain to improve.
9. I therefore did not mention the pain to anyone straight away but continued with the exercises. I tried to forget about the pain in my shoulder to work on a physical recovery.
10. Shortly before the surgery, I became concerned about my neck and shoulder pain. When I mentioned the stiffness in my neck and shoulder to Ben, he changed the exercise to try and prevent the neck pain.”
[4] ARD page 7 paragraphs 4 to 10.
The applicant detailed his physiotherapy treatment commencing in June 2011 involving frequent manipulations of his back and neck. In early 2013 he noticed persistent shoulder pain and a lingering tightness in the back of his right arm. He consulted Dr Yarrow, GP.[5]
[5] ARD page 9 supplementary statement.
Scans on 6 May 2015 showed disc protrusions indenting the cord at C5/C7 levels.[6]
[6] ARD page 35.
The applicant states that he experienced increasing neck pain and stiffness. The pain was located in his right neck and right shoulder and then radiated down to his hands. His thumb and index finger became numb. The numbness and pain were increasing. He obtained a referral from his GP to Dr Day. An MRI was performed and two bulging discs at C5/C6 were reported. A laminectomy was recommended by Dr Day.[7]
[7] ARD page 4 paragraph 23.
With the proposed cost in mind the applicant sought a second opinion. Dr Cherukuri was consulted. He discounted his fees and the applicant had a C5/C6 disc fusion on
8 February 2017[8] with beneficial results.[8] ARD page 4 paragraph 24.
Independent medical examiner (IME) Dr Giblin examined the applicant. He diagnosed “… a secondary or compensatory injury to his cervical spine upon the post-operative gym activities occurring following his lumbar spinal surgery.”[9]
And:
“It was from 2011 when he was attending his physiotherapist, that he recalls the therapist cracking his neck and back on the rationale that this would help relieve the tension in his low back.
He saw his GP on the 27 (sic should be 17) October 2013 and on this occasion he complained of right sided and posterior shoulder area discomfort and upper back pain.
This distribution is a classic referral pattern for symptoms coming from the cervical spine.”[10]
[9] ARD page 63.
[10] ARD page 70.
Dr Giblin concluded:
“… I would view the cervical spine injury as being connected to the employment injury of the low back and that the subsequent surgery of 2017 for the cervical spine was reasonable and necessary based upon the radiological findings and the symptomatology as has been recorded in my previous reports.”[11]
[11] ARD page 71.
The applicant had a water-skiing accident in his early 20s without any long-term effects. His evidence is that he otherwise has had no neck injury or neck pain prior to the alleged injury during rehabilitation exercises in 2013.[12]
[12] ARD page 7 paragraphs 11 and 12.
The respondent’s submissions
The grounds on which liability has been refused are well set out in the respondent’s s 78 Notice extracted below and were expanded upon by counsel for the respondent:
“Summary of the decision:
We do not agree that your alleged cervical spine injury arose out of employment as required by section 4 of the Workers injury arose out of Compensation Act 1987. We do not agree that your alleged cervical spine injury was received in the course of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the Contraction of your alleged disease injury in the cervical spine as required by section 4(b) of the Workers Compensation Act 1987. We do not agree that employment was the main contributing factor to the Aggravation, acceleration, exacerbation or deterioration of your cervical spine disease injury as required by section 4(b) of the Workers Compensation Act 1987. we do not believe that the claimed medical or related treatment is reasonably necessary for your cervical spine as a result of an injury as required by section 60 of the Workers Compensation Act 1987. We also do not agree that you are entitled to weekly payments and medical or related treatment because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related not reasonably necessary as a result of an injury as required 59 and 60 of the Workers Compensation Act 1987.
Reasons for the decision:
On 29 Ocober 2013 you underwent a left sided L3/4 and L4l5 discectomy. According to the report of Dr Giblin (served by your solicitors), you were then referred for a gym exercise program for six months. lt was during this activity, you supposedly developed neck pain. Allegedly you reported the problem to the person supervising you and his exercises were altered. lt was stated that your neck symptoms improved but they never completely resolved. No claim was ever made for the alleged cervical spine injury. ln June 2O14 you returned to performing a job as a pastry cook. On 8 February 2O'17 you underwent a C5/6 disc fusion and disc replacement (self funded) You were off work for roughly 4 months and went back to the same job performing pastry work. You were examined by Dr Vidyasagar Casikar who provided a report dated 22 October 2019.
Dr Casikar stated that employment was not a substantial contributing factor to the neck injury. The probability that it would have happened anyway at that stage in your life was considered high' The MRI of the neck revealed significant degenerative change. Therefore the symptom were not believed to be directly related to employment or the original workplace injury.
As an aside we note there are no contemporaneous complaints or evidence (save for the report of Dr Giblin) in connection with a possible work-related cervical spine injury'
Based on the information provided, we do not consider that your alleged cervical spine injury has arisen out of or in the course of your employment with Andreco-Hurll Refractory Services Pty Ltd or that your employment is the main contributing factor to your alleged injuries”
CONSIDERATION
The history provided by the applicant to the various medical practitioners regarding the onset of his neck and shoulder symptomatology is inconsistent. This is not surprising given the very pressing difficulty the applicant was suffering in relation to his back injury.
In his report of 28 July 2015 Dr Day refers to the applicant symptoms including right C6 radiculopathy presenting “…difficulty for approximately one year, gradually worsening”.[13] This is not consistent with the applicant’s history of pain developing and continuing to worsen since he first experienced it during rehabilitation in 2013.
[13] ARD page 40.
Dr Cherukuri reports on 14 February 2017 of the applicant presenting with a history of neck pain to the right arm for two years.[14]
[14] ARD page 47.
It is a common thread throughout the medical reports both for the applicant and the respondent that the applicant has very severe degenerative changes in his spine.
I consider there is insufficient reasoning provided by Dr Giblin for his conclusion regarding causation of the applicant’s neck and shoulder symptomology. It is not persuasive, particularly when viewed in the context of the applicant’s “chronic degenerative disease”[15] as noted by Dr Casikar in his report of 23 August 2012.
[15] Reply page 1.
Dr George Kalnins in his report of 22 October 2019[16] described MRI investigations as showing:
“…Predominantly multi segment degenerative disc disease. At the C5/6 there is significant osteophyte compression predominantly on the left side. Mr Mitchell’s symptoms were on the right side. Bone scan dated 16 January 2017 shows moderate multi segment degenerative disc disease of the cervical spine.”
[16] Reply page 12.
He diagnosed, “Constitutional degenerative disease of the cervical spine”. He concluded:
“Employment is not a substantial contributing factor to the neck injury. The probability that it would have happened anyway at his stage in his life is high. The MRI examination of the neck shows significant degenerative changes. Therefore, ln my opinion, the symptoms in his neck are not directly related to his employment or his injury at work.”
The applicant has a seriously degenerative spine. He has suffered an injury at work which has caused him to have spinal surgery to relieve his symptoms.
He has also had neck and shoulder symptoms which has caused him to self fund further surgery. Medical support for the necessity of that surgery is evident.
However, I am not persuaded that the rehabilitation treatment or gym sessions which the applicant entered into after his back injury were the cause of his neck and shoulder symptomatology or gave rise to the need for cervical surgery.
I am satisfied and find that the applicant’s neck and shoulder condition, which caused him to have cervical surgery, was caused by the degenerative disease of his cervical spine and was not related to an injury in the respondent’s employ.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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