Murphy v The State of New South Wales (Northern NSW Local Health District)
[2021] NSWPIC 371
•23 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Murphy v The State of New South Wales (Northern NSW Local Health District) [2021] NSWPIC 371 |
| APPLICANT: | Rhonda Murphy |
| RESPONDENT: | The State of New South Wales (Northern NSW Local Health District) |
| MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 23 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Findings regarding injury; competing medical opinion and challenge to applicant’s credit; Held - the applicant suffered an injury within the meaning of sections 4 and 9A of the Workers Compensation Act 1987 (1987 Act); the applicant is entitled to weekly compensation as set out in the Application to Resolve a Dispute subject to section 52 of the 1987 Act; there is to be a general order pursuant to section 60 in respect of the reasonable treatment expenses for the applicant. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury within the meaning of sections 4 and 9A of the Workers Compensation Act 1987. 2. The applicant is entitled to weekly compensation as set out in the Application to Resolve a Dispute subject to s 52 of the Workers Compensation Act 1987. 3. There is to be a general order pursuant to section 60 in respect of the reasonable treatment expenses for the applicant. |
STATEMENT OF REASONS
BACKGROUND
Ms Rhonda Murphy (the applicant) was employed as an enrolled nurse in the surgical
short-stay unit for the respondent at Lismore Base Hospital.The claim is in respect of an allegation of the applicant injuring herself on 7 November 2015 when she sat in a chair. The chair toppled and the applicant slipped on the floor and she not only struck her head on the chair but also hit the floor striking her buttocks/coccyx area.
The applicant was involved in an unrelated motor vehicle accident in January 2017 where she sustained injury predominantly to the cervical spine.
The applicant claims weekly benefits from 4 January 2017 based on a pre- injury average weekly earnings (PIAWE) of $604 per week and a general order pursuant to section 60. The claim is limited to s 52 of the Workers Compensation Act 1987 (the 1987 Act).
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) did the applicant suffer an injury within the meaning of s 4 and s 9A of the 1987 Act?
(b) does the applicant have an incapacity to work arising from the pleaded injury?
(c) is the motor vehicle accident a novus actus interveniens?
Matters no longer in dispute
The respondent no longer ventilated s 254 and s 261 in relation to notice and making a claim.
The applicant discontinued the claim in respect of surgery.
PROCEDURE BEFORE THE 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
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (the Application), and
(b) Reply to the Application to Resolve a Dispute.
10.Submissions were also received from counsel for the applicant, Mr Brazel.
The applicant’s evidence
11.The applicant has prepared four statements the first dated 31 January 2017,[1] the second dated 16 January 2019,[2] the third dated 19 June 2019[3] and the fourth dated 12 April 2021.[4]
[1] Application page 1
[2] Application page 6
[3] Application page 7
[4] Application page 208
12.In the applicant’s first statement she describes how she was employed to work night duty in a surgical short-stay unit as an enrolled nurse.
13.On or about 7 November 2015 the applicant was rostered to work night duty and between 11pm and 11.59pm she sat on a chair in the office to complete paperwork. As she was sitting on the chair talking to Rochelle Hull, the chair toppled and she slipped to the floor. Her head was struck by the chair and she hit the floor flush on her buttocks/coccyx area. The applicant said she felt shock and stood up but did not experience any immediate pain or obvious injury. She continued to carry out her duties for the rest of the shift.
14.The applicant did not fill out an incident report as it slipped her mind as at that time she had formed the view she would not require any medical attention. She planned to complete an incident report at a later date.
15.The applicant continued to work in the casual pool at the surgical short-stay unit and ultimately sought medical treatment from her general practitioner (Dr Ariyasinghe) on 21 January 2016. The applicant says she presented with extreme pain down the left hip, gluteal and down the left leg. The applicant said she believed the pain had just suddenly presented however the incident had taken place at the workplace a few months prior.
16.The applicant was prescribed pain medication for sciatica which did not assist. The applicant says she could not walk without assistance and was only sleeping for short periods of time.
17.The applicant went to see Dr Hew, who had helped her when she had previously suffered a severe gluteal strain in 2010. Dr Hew treated the applicant with acupuncture over four treatments.
18.The applicant returned to work on night-shift on 30 and 31 December 2016. She returned to see her general practitioner Dr Ariyasinghe on 4 January 2017 and requested a WorkCover medical certificate at that time which certified her unfit for work.
19.The applicant underwent an ultrasound on 2 March 2016 which disclosed trochanteric bursitis.
20.So far as a witness is concerned, the applicant identifies Rochelle Hull as a witness to the fall in November 2015.
21.In a second statement dated 16 January 2019 the applicant says that when she was interviewed by NCA Investigators relating to her injury she did not disclose that Ms Rochelle Hull was her daughter. The applicant says it was common knowledge in the workplace that their relationship was of mother and daughter and she did not think that it had any bearing on her claim.
22.In a further statement dated 19 June 2019 the applicant refers to the non-disclosure of the relationship with Ms Hull. The applicant says that the interviewer did not ask any questions in respect of how she knew Ms Hull and she did not see it to be of any relevance to the claim.
23.The applicant says it was well-known amongst the staff and her colleagues at the respondent’s premises that they were indeed mother and daughter. In fact the applicant says there was no intention of hiding the fact that they were a mother and daughter.
24.The applicant refers to a history that Dr Chang has taken that says that the applicant presented to Lismore Base Hospital following the fall; the applicant says that this is incorrect. The applicant says she has never presented to Lismore Base Hospital nor has she told any medical practitioner that she experienced pain immediately after the fall. The applicant confirmed she first sought medical help from her general practitioner after the acute onset of pain in January 2016.
25.In a handwritten note[5] the applicant says that she experienced extreme pain a few weeks after the incident. She was unable to weight bear on her leg and experienced a burning sensation in her buttocks. She also observed a hard lump on the Trocanter area.
[5] Reply page 232
26.In a further note dated 5 January 2017[6] the applicant provides a history consistent with her statement in that she fell to the floor checked her mobility and pain and was able to continue carrying out her duties. The applicant then goes on to say that in January 2016 she experienced injury and extreme pain in the left hip, gluteal area and left thigh region. The applicant says she has no clear recollection of the incident but it could have occurred between October to December 2015.
[6] Application page 147
Rochelle Hull
27.Ms Hull is also employed as a registered nurse in the surgical short-stay unit where the applicant worked. She has been part of the casual pool since 2014.
28.Ms Hull refers to Ms Murphy as an enrolled nurse and who was employed in the surgical short-stay unit. She says that she has worked with “Rhonda” a number of times but knows her well enough to know who she is, say hello to when she passes her on the ward. She recalls the incident when she fell off her office chair in the nurse’s station.
29.Ms Hull says that they have looked at the rosters and they were both rostered on the
night-shift on 7 November 2015. The incident when the applicant fell from the chair occurred on the night-shift in early November 2015 and the 7th was the date that they both rostered together, therefore that is the nominated date.30.At the time of the incident Ms Hull was working on a computer and the applicant was sitting at a desk next to her. The chair that the applicant was sitting on suddenly toppled over and the applicant fell on to the floor on to her buttocks and the chair head come down on top of her.
31.In a second statement dated 19 June 2019 Ms Hull addresses her relationship with the applicant.
32.In respect of her previous statement that she had answered the investigators questions which were closed questions. That is, the investigator stated words to the effect:
“Investigator: You’ve obviously worked with Rhonda a number of times I take it? You know who she is enough to say hello when you pass her by in the hallway or at change of shift?
Rochelle: Yes.
Ms Hull says this is reflected in her statement. She did not believe it was relevant to inform the investigator that the applicant was her mother when it was common knowledge in the workplace.”
Medical evidence
Grant Street clinical notes
33.The Grant Street clinical notes, the general practitioner’s notes, have been annexed to the Application.[7]
[7] Application page 91
34.The first consultation after the fall occurred on 21 January 2016. At the time the history provided to the general practitioner was the applicant was complaining of sciatica-like pain which had been going for three days at this time. The pain had commenced in December 2015 and radiated to her upper and lower leg and it was a burning-like pain.
35.Ongoing from that appointment the applicant continues to complain of sciatica-like pain.
36.The general practitioner has also prepared a report dated 25 August 2017.[8] The history provided in that report is the applicant fell over on the office floor when her chair toppled over. Dr Ariyasinghe thought that the applicant was not capable of doing any work at all given that she was in constant pain and unable to sit for more than 10 minutes.
Dr Ariyasinghe diagnosed the applicant as having back pain due to lumbar disc prolapse and left-sided hip pain due to trochanteric bursitis.[8] Application page 60
37.Dr Ariyasinghe comments that whilst the applicant was having treatment for this work injury, she also had a motor vehicle accident on 12 January 2017 when she was a passenger. Since the motor vehicle accident the applicant has had neck pain, lateral shoulder pain and pain in the thoracic area.
38.Dr Ariyasinghe has provided WorkCover certificates of incapacity certifying the applicant as being totally incapacitated due to her work place injury.
39.Dr Ariyasinghe has prepared a report dated 28 August 2017 in respect of the motor vehicle accident[9] Dr Ariyasinghe states that the applicant has been incapacitated from work as a result of the injury. He states that “she is in constant pain and unable to sit at one place more than 10 minutes. Further she is unable to drive for more than 10 minutes. She has not worked since this injury and is unable to do her house work either”. He does however report that the applicant did indeed have a back injury November 2015 at work, prior to the motor vehicle accident.
[9] Reply page 107
40.I observe that the report dated 28 August 2017 does not appear to fit comfortably with certificates of incapacity certified by him. The certificates of incapacity for the periods both before and after the motor vehicle accident all referred to the cause of incapacity being only the workplace injury.
Dr Poulgrain
41.Dr Poulgrain is a treating neurosurgeon who the applicant saw on 8 June 2017.[10] The applicant gave a history of a fall from a chair in 2015. The applicant said sometime later she developed pain in the left leg particularly around the left hip region together with quite marked tenderness over the left greater trochanter.
[10] Application page 396
42.Dr Poulgrain thought that clinically the applicant had bursitis over the left greater trochanter although the ultrasound did not appear to confirm it. She also had a moderate-sized lumbosacral disc irritating that left S1 nerve root.
43.It should be observed that Dr Poulgrain does not address causation directly, but obliquely accepts that the applicant’s history of pain goes back to when she fell in 2015 off a chair.
Dr Prodger
The applicant was referred to Dr Prodger by her general practitioner and first consulted with him in November 2016[11]. Dr Prodger had a history that the applicant had quite severe buttock pain and struggled to walk for any distance with left and right sciatica of the first two months following the fall. The symptoms settled about the last 10 months they have remained essentially unchanged. The applicant was referred to have an MRI of her lumbar spine and hip. On subsequent treatment Dr Prodger observed that the applicant had a large paracentral disc extrusion abutting the nerve root. Dr Prodger suggested the applicant consult with a neurosurgeon.
In an examination on 2 May 2017, Dr Prodger takes a history in respect of the applicant’s motor vehicle accident on 12 January 2017. The applicant at that time complained of pain in her cervico- thoracic spine which had increased from the date time of impact.
[11] Application page 89
Dr Chang
46.Dr Chang is the applicant’s treating neurosurgeon who has prepared a report dated 22 September 2017.[12] Dr Chang reports that he first saw the applicant on 19 January 2017 when she presented with a history of left leg pain secondary to left L5/S1 disc protrusion with left S1 nerve root impingement after returning from work on 21 January 2016. Prior to that, Dr Chang understood that in November 2015 she was admitted to Lismore Base Hospital after a bad fall from a chair whilst at work.[13]
[12] Application page 63
[13] The applicant does not agree that this is a correct history as she never was admitted to Lismore Base Hospital however it is clear that she worked there when she fell off the chair.
47.Dr Chang says it is not impossible to have her injury occur from a work-related activity causing annular disruption and subsequent disc herniation (hence clinical manifestation) upon returning home from work (that is in January 2016). That is, he appears to accept that can be some delay between the incident and the onset of symptomatology.
48.Dr Chang thought the applicant was unable to work until surgical decompression occurred.
49.Dr Chang has helpfully prepared a report earlier in time dated 19 January 2017[14]. In that report it is quite clear that Dr Chang understands that the applicant’s leg pain commenced in January 2016 following the fall in November 2015. It appears that the late onset of symptomatology does not concern Dr Chang in that report either.
[14] Application page 72
Dr Cleaver
50.Dr Cleaver, orthopaedic specialist, has prepared a report at the request of the applicant’s solicitors dated 11 May 2018.[15] Dr Cleaver takes a history that on 7 November 2015 when the applicant fell she fell heavily on to her buttocks thus injuring her lumbar spine in axial compression type manner. The history says that the applicant experienced back pain immediately and pain going down her left leg.
[15] Application page 44
51.Dr Cleaver looks at an MRI exam which took place six weeks after the injury. He says that apart from the L5/S1 disc, the pathology of the applicant’s spine can only best be described as pristine. It would therefore be reasonable to assume that there was minimal degeneration in the L5/S1 disc prior to the injury and but for the injury she was unlikely to have any spinal issues. Dr Cleaver appears to be mistaken in relation to the date of the MRI examination. It clearly did not occur until more than one year after the event on 14 December 2016.
52.Helpfully Dr Cleaver does describe the applicant’s quality of life at the time of his examination which includes difficulties in attending to daily tasks including personal hygiene. Her ability to travel has been curtailed and if she is required to be in a car the journey is completed in 20 minutes intervals which is in keeping with a sitting and standing tolerance.
53.Dr Cleaver recommends surgery by way of fusion discectomy after diagnosing the applicant as having an L5/S1 disc injury causing a disc prolapse and then left S1 radiculopathy and mechanical back pain.
Dr Cochrane
54.Dr Cochrane has prepared reports on behalf of the respondent at their request. The first report is dated 15 March 2017.[16]
[16] Reply page 51
55.Dr Cochrane took a history that is consistent with the applicant’s statement in that she fell from the chair and recalls the back support striking her on the head and she landed heavily on her buttocks on the floor. The applicant told Dr Cochrane that she felt quite shocked,
self-checked and did not feel any initial pain and could move ok.56.By 21 January 2016 the applicant then had to see her general practitioner as she had developed a rapid onset of severe pain in her left leg (front) and could not weight-bear on the left side.
57.Dr Cochrane took a history of the applicant’s pain which was described as constant in the coccyx region and in the gluteal region of the posterior thigh on the left side. Lower back pain also passed in a band across the lumbosacral region.
58.Dr Cochrane understood that there was an aggravation recently when the applicant was involved in a rear-end motor vehicle accident in January 2017 where the applicant was a passenger in a vehicle. The applicant had new symptoms after that accident including neck pain, burning in the posterior neck region and difficulty turning her head.
59.Dr Cochrane’s impression was that he had significant concerns in the documentation. In particular there is concern about the applicant’s daughter Rachelle Hull where she does not disclose she is indeed the applicant’s daughter. The other concern is that there was spontaneous onset of symptoms in January with apparent period of absence between the alleged chair collapsing in November 2015 and January 2016. Therefore Dr Cochrane could see no link between the collapsing chair in November 2015 given the absence of apparent injury, pain or symptoms until the emergence of symptoms in January 2016.
60.Dr Cochrane accepts that the MRI scan clearly shows a disc protrusion which could be causing symptomatology as complained of. However, he is of the view that the disc protrusion likely had an onset of on or around January 2016 given the reported symptomatology onset.
61.Dr Cochrane concludes that degenerative changes, as reported in their supplied MRI and
x-ray reports, were consistent with osteoarthritic changes in the lumbar spine which were consistent with the worker’s age and age-related degenerative change and would have likely occurred whether or not the applicant was employed at Lismore Base Hospital. That is, because of the disc height collapse, modic type 2 inflammatory changes and marginal osteophytes all seen at L5/S1 on the MRI, there was a predisposition for disc lesion at L5/S1 at some stage to occur in any event.
62.In relation to capacity Dr Cochrane holds the view that the applicant is not fit to return to her pre-injury duties.
63.Dr Cochrane also holds the opinion that the surgery proposed by Dr Chang would benefit the application but it has no link to her workplace.
64.In a further report dated 16 December 2009, Dr Cochrane repeats a history he obtained from the applicant and now understands that the applicant was involved in a motor vehicle accident in January 2017. He understood the applicant reportedly suffered a whiplash associated disorder with cervical and thoracic pain consequent on a rear end motor vehicle accident causing symptoms which had largely settled.
65.At that time the applicant reported symptomatology of left-sided sciatica with pain mainly around the posterior lateral hip region near the greater trochanter on the left side. The back pain had fortunately settled somewhat. The applicant had undergone a total of three steroid injections into the bursa region in recent times.
66.Once again Dr Cochrane opines that due to the failure to report the incident, and the deferred onset of symptomatology that the applicant did not suffer an injury as alleged. It appears that Dr Cochrane rests his opinion on an assumption that the workplace event did not occur on 7 November 2015, that is that there is no clear and documented evidence of the workplace event actually having occurred nor any reports of symptomatology until she consults with the general practitioner in January 2016.
67.Helpfully Dr Cochrane goes ahead and provides a whole person impairment assessment if it was found that the workplace event did occur on 7 November 2015. He assessed the applicant as having 11% whole person impairment. He also would concur, in those circumstances, with the opinion of Dr Cleaver as to proposed surgery.
Discussion- the issues
68.The first criticism made by the respondent of the applicant’s case is that there was a
non-disclosure of the relationship between Ms Rhonda Murphy and Rachelle Hull in their initial statements. The tenor of the respondent’s submission is that this causes serious concern in relation to the credit of both the applicant and her daughter so far as their evidence in relation to the alleged injury.69.I do agree that the primary statements do not disclose the applicant’s relationship with the witness however I decline to make findings against their credit on the basis of the information before me.
70.It is apparent that it was commonly known that Rachelle Hull was indeed the applicant’s daughter. I also accept the evidence given by Ms Hull in her second statutory declaration which explains why it had not been mentioned in the first instance.
71.I do accept that the failure to disclose the information is uncomfortable and slightly concerning though I decline to make the findings against both the applicant and her daughter in circumstances where an explanation has been provided in the circumstances of how the statement was taken by the investigator.
When did the symptomatology first come on?
72.There are many various histories given by various practitioners as to when the applicant’s symptomatology commenced. The applicant told Dr Cochrane that she did not feel any pain and could move well. Dr Cochrane understood that the applicant did not have any symptoms until January 2016 whereby she developed severe leg pain associated with numbness and difficulty weight bearing.
73.Dr Cleaver records a history of back pain in his report dated 11 May 2018 and takes a history that the applicant did not have immediate onset of pain following the fall. However, there was pain which developed which required the applicant to seek medical treatment.
74.The clinical notes of Grant Street Clinic indicates that the first consultation in respect of the fall being on 22 January 2016. At that time the applicant was experiencing right-sided pain radiating into the left lower leg.
75.On the entry dated 17 June 2016 the applicant provided a history to her general practitioner of back pain since January since she had a fall (twice). In an entry dated 6 October 2016 the applicant reports that she had buttock pain after slipping from a chair 10 months ago. The applicant had a fall 10 months ago, got a large lump, bruised, lateral side of her thigh then sciatica.
76.On 4 January 2017 there is a further description of the incident of the applicant falling off a chair in November 2015 and had experienced back pain and left sided pain since then. The applicant says she did not have pain from the start but the pain started in early January and became chronic.
77.Dr Chang, neurosurgeon has a history of the applicant falling from a chair, however also had a history that the applicant attended Lismore Base Hospital which is incorrect. Dr Chang however in his report to Dr Prodger on 19 January 2017[17] understands that the applicant’s pain started in January 2016 when she experienced fairly acute left pain after returning to work. Prior to that the applicant had presented to Lismore Base Hospital after a bad fall from a chair at work.
[17] Reply page 148
78.Dr Prodger also takes a history[18] that 12 months ago the applicant slipped off a chair and landed heavily onto her buttocks, more on the left. For the first two months she had really severe buttock pain and struggled to walk for any distance with left and right sciatica. The symptoms settled over the first two months and for the last 10 months they have remained essentially the same.
[18] Report dated 29 November 2016
79.After considering all the evidence, it appears to me that it is both the applicant’s evidence and consistent evidence provided to treating practitioners that the applicant did not have the immediate onset of pain but it came on sometime after her fall in November 2015. The pain was such a level that in January 2016 applicant required medical treatment. I make finding of fact that the applicant did not experience the immediate onset of pain after the fall and experienced acute pain in January 2016.
Injury
80.In order to be satisfied there is an injury one must be satisfied that there is evidence of a sudden or identifiable pathological change.[19] In order for the applicant to be successful I am required to apply common sense of causation in the sense of Kooragang v Bates[20] and it must amount to a sense of some actual persuasion.
[19] Castro v State Transit Authority (NSW) [2000] NSWCC 12, Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWLR 452
[20] Kooragang v Bates 10 NSWCCR 796
81.So far as the question of whether the applicant fell from the chair, I am satisfied that that event did occur. The applicant has given evidence in respect of it and I find it convincing particularly in light of the consistent history she has given about the fall to her various treating doctors and medical providers. As I have already indicated, it is unfortunate and regrettable that the relationship was not disclosed in the initial statements between the applicant and the independent witness Ms Hull, however I accept their reasoning as to why that wasn’t disclosed.
82.The opinion of Dr Cleaver, is somewhat tainted as the assumptions that he relies upon are not supported by the applicant’s own evidence. Firstly, Dr Cleaver takes a history that the applicant experienced immediate pain after the event. This clearly is in contradiction to the applicant’s statement and history is given to various other treating practitioners. Secondly
Dr Cleaver also appears to put some reliance on the MRI exam which he understood took place some six weeks after the injury, however he is mistaken in that it occurs in December 2016, rather than 2015. This obviously has an impact on the weight which can given to his opinion as to injury generally. I therefore place little reliance on the opinion of Dr Cleaver.83.Dr Cochrane accepts the mechanism could give rise to an injury generally, however he raises concerns about the late onset of symptomatology together with the failure to report the fall and disclose the relationship between the applicant and Ms Hull.[21]
[21] Application page 26
84.The obvious difficulty with the opinion of Dr Cochrane is that it does not match up with factual findings that I have made. I have accepted that the applicant did indeed have a fall as claimed in November 2015 from a chair at work, a finding that the doctor obviously does not take into account in forming his opinion. Dr Cochrane was troubled by the nondisclosure of the incident and relationship between the applicant and her daughter, matters which have not caused me significant concern.
85.The net effect on Dr Cochrane’s opinion is that I’m left with little understanding as to the weight Dr Cochrane places on the factual issues in forming his medical opinion. His opinion can therefore not assist me to any great extent in this determination.
86.Of some relevance to the determination is a finding that the applicant indeed suffered a pathological change at the time of the fall to be characterised as an injury. I accept that the applicant felt no pain initially however this developed into pain being apparent from about December/ January 2015. The onset of this pain is apparent from the clinical records of the general practitioner, those notes I find quite persuasive given the contemporaneous reporting of complaint.
87.Dr Chang accepts that the non-existence of severe pain at the time of the fall does not prevent a finding of injury. That is, a ruptured disc injury can cause the gradual onset of pain. To my mind this fits well with the applicants evidence and I find it persuasive. This is a proposition that is not rejected by the Dr Prodger, Dr Poulgrain and even Dr Cleaver accepts that the fall could conceivably cause a disc prolapse[22].
[22] Application page 26
88.After considering all the evidence, bearing in mind the standard of proof, I am persuaded that the applicant did indeed suffer an injury as alleged when she fell at work as alleged. It seems to me to be more probable that not that she sustained an injury particularly in light of the opinion of Dr Chang that a ruptured disc can cause the gradual onset of pain. This is also consistent with the opinion of Dr Poulgrain, who accepts the applicant’s history that the symptoms manifested some time after the event.
89.The respondent also raises s 9A in respect of the chair incident. Having already accepted that the chair fall is the cause of the injury then in those circumstances there is nothing to say that in all probability the injury would have happened in any event. The event being an injury simpliciter and not a nature and conditions type injury. Further, there is nothing in the applicant’s history that would cause me concern in respect of her health prior to the incident or any other outstanding causes.
90.I should also add that the respondent also raised an issue of whether the injury did incur in November or maybe in January 2016. That is because of a history that is been given to the general practitioner on 6 October 2016 says that the applicant said that the injury occurred some 10 months ago.
91.I find this submission unpersuasive, medical records and casual recollections as to the date of injury sometime after the event are often easy to mistake. Experience teaches that busy doctors sometimes misunderstand or misrecord histories, particularly where their concern is with treatment or the impact of an injury. [23]
[23] Mason v Demasi [2009] NSWCA 227
Incapacity
92.The claim for incapacity commences on 4 January 2017 and finishes on 1 March 2018. There is no issue that PIAWE is agreed at $604 per week. The injury occurred after the applicant reached retirement age and by virtue of s 52 of the 1987 Act is only entitled to benefits for a period of 12 months.
93.There is little to say about incapacity as there was general agreement that the applicant was not fit to work. This is accepted by Dr Cochrane and also Dr Cleaver.
94.The applicant has annexed certificates of incapacity which all reports that the cause of the applicant’s incapacity was due to the fall. I do not place significant weight on these due to the General Practitioner also providing a report inferring that the motor vehicle accident is the cause of the incapacity.
95.The respondent points out that in the general practitioner’s notes there is reference to return to work plan (10 January 2017). There is no evidence as to what occurred when the applicant attempted to return to work.
96.There is no evidence at all to satisfy me that the applicant did indeed attempt to return to work or that she didn’t. In those circumstances I’m left with the applicant’s evidence that she hasn’t returned to work and there is nothing for me to make a finding of fact in contrary to that. One would have thought that if the applicant did indeed return to work or attempt to return to work that that information would have been in the knowledge of the respondent and could been put before me. In the present circumstances and I am unable to find that the applicant did indeed attempt to return to work or enter into a discussion about the circumstances in relation to that.
97.The applicant’s injury has significant effects on her daily life. These have clearly been outlined by Dr Cleaver in his reports and also the applicant’s statements. There is significant support for the applicant undergoing invasive surgery which includes the opinion of
Dr Chang who opines that the applicant is unable to work until the surgery takes place.98.Even Dr Cochrane, who doesn’t accept the workplace injury, helpfully provides an alternate platform opinion if the workplace injury is accepted. That opinion is that the applicant is not fit to return to preinjury duties but could work some four hours a day, five days a week from three months after the emergence of the symptoms, which must be in April 2017.
99.I find it difficult to accept Dr Cochrane opinion in relation to the applicant’s ability to work as it relies on the assumptions that the pain has decreased and the acute phase had settled. The applicant’s evidence is that whilst at times the sciatic pain has reduced it is still present and pain impedes her daily life.
The applicant’s symptomatology which results from an annular disruption and subsequent disc herniation to that L5/S1 disc involving S1 nerve root impingement sounds in a significant incapacity. Due to the nature of the injury, I accept that would be difficult the applicant to work as she formally had as a nurse and due to the pain level she experiences I find that it would be difficult for her to work in any meaningful way. I therefore find the applicant has no current work capacity
Is the motor accident a novus actus interveniens?
A novus actus interveniens is an intervening act which cuts the chain of causation. The intervening event, in these circumstances the motor vehicle accident, it is submitted by the respondent, draws a clear line between the event under consideration and the subsequent state of affairs regarding incapacity. The effect being, it is submitted, that there is no ‘is common sense’ chain of causation from one to the other.
It must be observed that the applicant sustained injuries in a motor vehicle accident which has had some effect upon her. One must be mindful however that that impairment caused by the motor vehicle accident does not appear to be in respect of the same body parts that this injury does.
There appears to have been a claim made under the Motor Accidents Compensation Act 1999. The claim was assessed as having a permanent impairment not greater than 10%. The claim appears to have been in relation to a whiplash injury of the cervical spine together with an exacerbation of a mid thoracic disc injury to the thoracic spine[24].
[24] Medical Assessment Certificate-12 Reply page 89
Contained in the Medical Assessment Certificate relating to that claim is a history of the motor vehicle accident. The applicant states that she was a passenger in a car and was stationed at a stop sign when her car was rear ended causing her head to flip forward and back twice at the cervical spine. The applicant says she got out of her car carefully so as not to exacerbate her L5/S1 work-related injury.
The applicant says that she was able to drive home in her car and three to four weeks later there was pain in her neck which progressed into the mid-region of the back.
The Medical Assessor Dr Garvey found that the applicant did indeed suffer a whiplash injury of the cervical spine superimposed on pre-existing degenerative changes together with an exacerbation of mid thoracic disc injury to the thoracic spine arising from the motor vehicle accident.
Dr Cochrane who has produced a report following the motor vehicle accident observed that the applicant only has mild restrictions following and is not a significant effect on her potential earning capacity.[25] He was therefore of the opinion that the non-work-related motor vehicle accident had no bearing on the current incapacity or need for treatment. To my mind this is significant evidence which militates against a finding disturbing the chain of causation.
[25] Application page 236
I place a significant amount of weight on Dr Cochranes opinion on this issue. He seems to be the only expert that has attempted to delineate the effects of the motor vehicle accident and the work place event.
Conclusion
I am mindful in the workers compensation jurisdiction, that the applicant does not need to present a ‘perfect case’. The case needs to be proven on the balance of probabilities. This must necessarily mean, that though I have some concerns about the applicant’s reliability as a historian, I do accept that she fell off the chair as claimed and that there was an onset of pain in January, at least a month later.
The medical evidence in this case has also caused me some difficulty. There appears to be various histories taken that not in accordance with my findings of fact. There are also histories taken that are not consistent with the applicant’s evidence contained in her statements.
Whilst I have outlined these concerns, I believe that there is enough evidence for the applicant to successful in this case, that is that she has discharged the burden of proof on the balance of probabilities.
I understand why the respondent has had difficulties in accepting liability in these circumstances, however, given the burden of proof being that of 51%, it does not mean that the applicant needs to present a case that doesn’t bring any challenges with it.
In those circumstances there should be an award for the applicant.
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