Naidu v Toll Transport Pty Ltd t/as Global Express Parcels
[2022] NSWPIC 586
•21 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Naidu v Toll Transport Pty Ltd t/as Global Express Parcels [2022] NSWPIC 586 |
| APPLICANT: | Shakuntala Naidu |
| RESPONDENT: | Toll IPEC Pty Ltd |
| Member: | Cameron Burge |
| DATE OF DECISION: | 21 October 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits and medical expenses for alleged injuries to cervical spine and left upper extremity; liability denied for each injury and incapacity for employment also disputed; Held - the applicant suffered injury to her cervical spine by way of aggravation to underlying degenerative changes to which her employment was the main contributing factor; the effects of the aggravation to the cervical spine are ongoing; the applicant suffered frank injury to her left upper extremity (shoulder and elbow) in the course of her employment with the respondent; the respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in respect of both injuries including the costs of and incidental to the proposed cervical fusion surgery; as a result of her injuries the applicant has partial incapacity for employment to work 15 hours per week on suitable duties for the period claimed in the Application; respondent to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $460.60 from 31 March 2022 to date and continuing. |
| determinations made: | 1. The applicant suffered an injury by way of aggravation to her cervical spine as a result of the nature and conditions of her employment with the respondent up to and including 2. The applicant’s employment with the respondent was the main contributing factor to the injury referred to in [1] above, the effects of which are ongoing. 3. The cervical spine fusion surgery proposed by Dr Singh is reasonably necessary as a result of the injury referred to in [1] above. 4. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses incurred as a result of the injury referred to in [1] above, including but not limited to the costs of and incidental to the proposed cervical fusion surgery. 5. The applicant suffered an injury to her left upper extremity (shoulder and elbow) in the course of her employment with the respondent on 2 September 2020, to which her employment with the respondent was a substantial contributing factor. 6. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in relation to the injury referred to in [5] above. 7. As a result of the injuries referred to in [1] and [5] above, the applicant has suffered and continues to suffer partial incapacity for employment. 8. At the date of injury, the applicant’s pre-injury average weekly earnings were $1,142.61 per week. 9. At and from 31 March 2022, the applicant had a residual capacity for employment of $428.48 per week. 10. The respondent is to pay the applicant weekly compensation pursuant to s 37 at the rate of $460.60 from 31 March 2022 to date and continuing. |
STATEMENT OF REASONS
BACKGROUND
These proceedings are a claim for the payment of weekly compensation together with medical and treatment expenses, including a proposed cervical spine fusion brought by
Ms Shakuntala Naidu (the applicant), who was employed by Toll IPEC Pty Ltd (the respondent) as a mail sorter.The applicant claims that as a result of the nature and conditions of her employment she suffered an aggravation to underlying degenerative changes in her cervical spine caused by both the nature and conditions of her employment up to 2 September 2020 and various incidents which took place on that date.
The applicant had been employed by the respondent since approximately 2005 as a mail sorter. Her job entailed mainly moving mail packages and sorting them. It was at times heavy and was always repetitive, physical work. She claims to have suffered an injury to her neck and left upper extremity (shoulder and elbow).
On 2 September 2020, no forklift driver was available, so the applicant and three co-workers had to move trolleys and conveyor belts manually to set up the workplace for the ensuing shift. As the applicant manoeuvred a jammed conveyor belt, she felt sudden pain in her neck and her left shoulder.
The respondent disputes liability for each of the allegedly injured body parts and says the effects of any aggravation to the applicant’s cervical spine have passed. The respondent further alleges the applicant did not suffer an injury to her left upper extremity, and that if there is a finding of injury, in any event, the applicant has residual capacity for employment and is not totally incapacitated as alleged.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain to be determined:
(a) whether any alleged work-related aggravation to the applicant’s cervical spine, if proven, has resolved;
(b) whether the applicant suffered an injury to her left upper extremity (shoulder and elbow);
(c) if the answer to either (a) and/or (b) above is in the affirmative, does the applicant continue to suffer incapacity for employment, and if so, to what extents, and
(d) whether the proposed cervical spine fusion is reasonably necessary as a result of any injury to that body system.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
I am satisfied that the parties to the dispute are aware of the allegations contained within the Application to Resolve a Dispute (the Application) and the effects of any assertions made within it. I have used my best endeavours to assist the parties to reach an agreed resolution of the dispute, however, they have been unable to do so.
The parties attended a hearing before me on 19 September 2022. On that occasion Mr Robison of counsel instructed by Mr Tohme appeared for the applicant. Mr Jones of counsel instructed by Ms Bauer appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were placed into evidence and taken into consideration in making this determination:
(a) the Application and attached documents;
(b) Reply and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 6 June 2022, and
(d) applicant’s AALD dated 5 July 2022.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered injury to the cervical spine and whether its effects are ongoing
The applicant has the onus of proving her cervical spine symptoms were caused by a work-related injury. There is no question the applicant suffered from some cervical spine symptoms before the alleged injury in issue. The clinical notes of the treating general practitioner make that much clear.
However, the various complaints were made some months before the alleged injury, and in my view, it is more likely than not that the nature and condition of the applicant’s employment aggravated her cervical spine symptoms to the point where she could no longer work. As noted, the applicant’s employment was sometimes heavy and always repetitive manual work. Her uncontested statement evidence as to her duties is as follows:
“5. In 2020, I was working full-time from 4:00pm to 12:00am. My duties involved
setting up racks, lifting bags of mail and sorting the mail. The night shift workers would leave their large trolleys and conveyor belts out so we would also have to move these around to set up our workspace for the shift.
6. On 2 September 2020, the forklift driver was unavailable, so me and three girls had to move the trolleys and conveyor belts manually and lift and move the mail packs.
7. I was moving a conveyor belt that had its wheels jammed, so I had to lift and turn the conveyor belt myself. Whilst doing this, I felt sudden pain in my neck radiating into my left shoulder. This occurred at the start of my shift around 4:30pm to 4:45pm”
In my view, had her cervical spine condition being caused entirely by underlying factors rather than work-related issues, it is unlikely the applicant would have been able to work as a mail sorter for as long as she did. Moreover, on 2 September 2020, the applicant was faced with a set of circumstances which rendered her duties heavier, more strenuous and more difficult than was usually the case. It was whilst carrying out those duties that the applicant first noticed pain in her neck and left upper extremity.
14. The respondent made much of the fact the applicant’s histories to several doctors indicated that she had not suffered pre-existing neck pain. Nevertheless, it is apparent the applicant’s symptoms worsened during the course of 2020 in the lead up to her ultimately finishing work.
15.It is the cause of the aggravation to the applicant’s underlying cervical condition which must be examined, not the underlying condition itself. That much is made clear by a line of authority commencing with Federal Broom Co Pty Ltd v Semlitch(1964) 110 CLR 626. In numerous cases since Semlitch, the Commission and its predecessors have emphasised that the test must relate to the cause of the aggravation rather than the underlying condition: see for example Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132 and AV v AW [2020] NSWWCCPD 9. What is required is a common sense evaluation of the lay and medical evidence to determine whether employment was the main contributing factor to the aggravation.
16.In its s 78 notice, the respondent disputed whether the applicant suffered injury to the lumbar spine at all. That contention was made despite the fact it had originally accepted liability and that its medical case essentially relied on Dr Wallace, Independent Medical Examiner (IME).
17.In his report, Dr Wallace opined that the applicant did suffer a work-related aggravation to her cervical spine, however, the aggravation would have resolved in three months. As such, the respondent’s contention in the s 78 notice that the applicant had not suffered an injury to her cervical spine at all stands at odds with its own case.
18.Mr Robison made submissions for the applicant to the effect the longstanding acceptance of liability in relation to the cervical spine injury gave rise to an estoppel which would prevent the respondent from now declining liability. Given the medical evidence relied on by the respondent accepts the presence of a work-related cervical spine aggravation, I do not consider it necessary to deal with that submission, as the respondent’s own medical case operates to effectively dispose of its assertion in the s 78 notice that the applicant did not at any time suffer a work-related injury by way of aggravation to the cervical spine.
19.In my view, the medical evidence surrounding the cervical spine, including that of the respondent’s own IME, is overwhelmingly in favour of the proposition the applicant suffered an aggravation to her cervical spine to which her employment was the main contributing factor.
20.The real question in relation to the cervical spine is not whether the applicant suffered an aggravation, but whether that aggravation has ceased. Where a party alleges an injury has resolved or its effects have ceased, the onus of proof on that question resides with the party alleging the injury has resolved or its effects have ceased: see Commonwealth v Muratore [1978] 141 CLR 296; University of New South Wales v Brooks [2014] NSWWCCPD 68.
21.The respondent’s IME Dr Wallace completed a report dated 6 December 2021 in which he said:
“At her cervical spine, she now complains of intermittent aching pain at the C5, C6 and C7 spinous processes radiating to the left scapular spine which is not present on a daily basis. The pain is worse on lifting, driving long distances or further use of her left arm and is relieved by stretching exercises or physiotherapy. She complains of paraesthesia in the region of the left scapular spine. She complains of weakness at her left arm. She is right-hand dominant. She notes stiffness at her cervical spine. She notes no current pain at her left shoulder or elbow…
Diagnosis of 2/9/2020 work injury includes musculoligamentous strain cervical spine – now resolved. Aggravation of pre-existing multi-degenerative cervical spondylosis – now resolved. She suffered a strain injury at her cervical spine as a result of her work incident on 2/9/2020. She was reviewed by her local medical officer and treated with physiotherapy and analgesic medication as well as a corticosteroid injection of her cervical spine. She is currently attending physiotherapy once a week and using Mobic anti-inflammatory medication. She notes no previous history or episodes of pain at her cervical spine. Her cervical spine injury of 2/9/2020 some 15 months ago has resolved. At that time, at work she suffered a musculoligamentous strain of her cervical spine and aggravation of pre-existing significant multi-level degenerative cervical spondylosis which would have settled within three months of this incident.
The current residual cervical spine symptoms are due to pre-existing multi-level degenerative cervical spondylosis which is constitutional in origin and unrelated to her employment. There were no other known factors which are affecting her recovery. She does not require any further treatment or medical review for any work-related condition with her cervical spine.”
22.Dr Wallace provides no substantive reason as to why the applicant’s aggravation had ceased within three months of occurring, and his opinion is a bare ipse dixit statement. Dr Wallace has provided a simple comment to the effect that the aggravation must have ended, without providing any substantive basis as to why this is the case. He notes the applicant has undergone treatment post-injury and was still receiving treatment for neck symptoms.
Dr Wallace provides no explanation as to why it is the applicant’s ongoing cervical spine symptoms relate to the underlying pathology in her neck, and not the aggravation to it caused the injury at issue. I therefore reject Dr Wallace’s opinion on this basis, as he fails to set out any factual basis for his finding.23.The broad statement made by Dr Wallace is one which the Commission continues to see in numerous cases. Despite myriad decisions making it clear such opinions carry no weight without some explanation which accords with the evidence for the conclusion proffered, parties continue to use such broad-brush comments as the basis for denying liability.
24.The medical evidence in this matter, both treating and medico-legal, reveals a consistent degree of complaints of symptomology by the applicant from the date of injury to date. There is no suggestion the applicant’s cervical spine symptoms resolved to a pre-injury level at any time since September 2020. Rather, in my view the evidence discloses her condition has continued to worsen.
25.Since the date of injury, the applicant has undergone numerous attempts at conservative treatment, including but not limited to analgesic pain relief, physical therapy and the use of a TENS machine. They have all proven unsuccessful. The applicant has also consulted a pain specialist without benefit.
26.With respect to Dr Wallace, as noted, his opinion is not provided against the background of any substantive reasoning. He simply asserts that the applicant’s aggravation would have resolved. Moreover, in considering the pathology in the applicant’s cervical spine, Dr Wallace does not take into consideration the relevant test is whether the applicant’s employment caused the aggravation to her condition, rather than the underlying pathology itself.
27.In my view, the medical evidence in this matter is overwhelmingly in favour of the applicant having suffered an aggravation to her cervical spine with a deemed date of injury of 2 September 2020. That evidence includes the opinion of the respondent’s own IME.
28.Mr Jones for the respondent noted the applicant’s IME Dr Gehr had provided a report in which he stated the applicant’s ongoing cervical spine symptoms were due to pre-existing degenerative changes and the injury to the neck had resolved. Despite providing an opinion to this effect, Dr Gehr on examination noted evidence of dysmetria and decreased sensation at C6-7 on the applicant’s left side and decreased hand grip strength. Dr Gehr then diagnosed the applicant as suffering “cervical spine soft tissue injury with guarding, dysmetria and left radiculopathy”.
29.Mr Robison submitted, and I accept that Dr Gehr’s comments in relation to the applicant’s cervical spine issues concerning degenerative changes appear to relate to the underlying pathology rather than the ongoing symptomology. This submission is supported by Dr Gehr’s conclusion that the applicant’s cervical spine issues are related to the injury at issue, and his detailed address of Dr Wallace’s report in which he specifically deals with whether the applicant’s aggravation in the cervical spine has ceased. On the final page of his report,
Dr Gehr stated:“Dr. Wallace has stated she has an aggravation of pre-existing multilevel degenerative
cervical spondylosis – now resolved. With respect I disagree with that. There may be
changes on the imaging but they were asymptomatic prior to subject accident. As a result of the subject accident, they became symptomatic.
It is my opinion that aggravation should not be based solely on imaging but on the
presence or absence of symptoms.”
30.Dr Gehr’s position is clarified in a later report dated 2 June 2022 in which he clearly states:
“I also referred to the correspondence of Dr. Singh dated 19/5/2022 in answer to question 10 where he disagrees with Dr. Wallace in his comments that the cervical spine condition has resolved. He states and I agree that her injury has not resolved and that she continues to have the debilitating pain, weakness and stiffness.”
31.That view is consistent with that of treating practitioners, including surgeon Dr Singh described the applicant’s injury as aggravation of previously asymptomatic underlying degenerative changes which, as at the time of his report on 19 May 2022 were “related to the nature and conditions of employment”.
32.The respondent noted, and I accept, that contrary to a number of histories provided by the applicant, she had clearly suffered some neck symptoms in the past. This is clear from an examination of the general practitioner clinical records produced by Woodville Road Medical and Dental Centre. In February 2019, the applicant presented with neck stiffness. That complaint was repeated in May 2019 with a complaint of neck pain and stiffness for three months with no history of injury given. Whilst I have no difficulty accepting the applicant had previously complained of neck pain, the evidence clearly establishes she was able to continue working up to 2 September 2020, when the combination of the aggravation to her neck caused by her employment generally combined with that caused by the specific issues she suffered on that date brought about the injury at issue.
33.The question is to whether the applicant medically requires the proposed fusion surgery was not seriously contested, as the main dispute was in relation to causation. Nevertheless, I am satisfied on the balance of probabilities that the treatment should be afforded to the applicant rather than it be forborne. As treating surgeon Dr Singh notes, the applicant has undergone several courses of conservative treatment to little effect. He describes the surgery as appropriate given the applicant’s ongoing issues, which he has opined were caused by her employment. Applying the indicia set out by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72, I accept the proposed anterior fusion surgery is appropriate, widely accepted by the medical profession as capable of resolving at least some of the applicant’s symptoms; that conservative alternatives have failed, and that the cost, whilst expensive, is not prohibitive.
34.Having found for the applicant on the issue of causation and the ongoing nature of her injury together with the appropriateness of the proposed surgery keeping in mind the indicia in Diab, it follows in my view that the proposed cervical spine fusion surgery is reasonably necessary, and the respondent will be ordered to pay the costs of an incidental to it.
Whether the applicant suffered an injury to her left upper extremity
35.In my view, the evidence is also clear in relation to the applicant’s left upper extremity (shoulder) and elbow. There is contemporaneous complaint of pain and injury in that body system from the date of injury in the immediate aftermath of the incident on
2 September 2020.36.Unlike the injury to the cervical spine, the radiological investigations disclose evidence of frank injury to the left shoulder and elbow brought about by the applicant’s difficulties on that date. In my view, the incident on that day was a substantial contributing factor to the injury sustained, in that the applicant suffered a sudden onset of pain and restriction of movement in her left shoulder and elbow consistent with the pathological change noted in contemporaneous investigations and examinations.
An MRI of the applicant’s left shoulder taken on 21 September 2020 revealed partial thickness tears of the subscapularis tendon together with mild bursitis and possible underlying shoulder impingement. Acromioclavicular arthropathy was also present. An MRI of the left elbow taken on the same date revealed post-traumatic strains/oedema in the extensor carpi radialis. Mild triceps tendinosis was present.
38.That finding is supported by treating surgeon Dr McKechnie, who reviewed a November 2020 MRI of the left shoulder and found a partial tear with bursitis, together with oedema in the extensi carpi radialis of the left elbow. The findings of left upper extremity impingement continued to inhibit the applicant at least up to November 2021 when a further MRI disclosed ongoing left shoulder bursitis together with rotator cuff tendinopathy with partial tearing of the suprascapularis and supraspinatus together with labral tear.
39.The radiological evidence is clear cut and demonstrates pathological change consistent with the complaints made by the applicant in her statement. I do not believe the applicant would have been able to carry out the repetitive and often heavy employment in which she was engaged over many years if such serious left shoulder and elbow pathology had been present before 2 September 2020.
40.In my opinion, the contemporaneous medical evidence is clear. The applicant suffered an injury to her left shoulder and left elbow in the course of her employment with the respondent on 2 September 2020 to which her employment was a substantial contributing factor. The respondent will therefore be ordered to pay the applicant’s reasonably necessary medical and treatment expenses incurred as a result of those injuries.
Whether the applicant continues to suffer incapacity for employment
41.I am of the view the applicant continues to suffer incapacity for employment, however, contrary to the applicant’s submission, I find that she has residual capacity to work 15 hours per week. I note the applicant was working for that period of time until the s 78 Notice was issued by the respondent. Those work hours were consistent with the Rehabilitation Report which forms part of the evidence in this matter. In particular, I note the applicant had returned to work in or about early 2021 in accordance with the recommendations of Workability Rehab, whose report is found at [104] of the Reply. The exercise physiology report found at [109] of the Reply also reports objective findings of the applicant being able to attend to certain occupational activities for restricted hours in accordance with her limitations caused by the injury.
42.The applicant’s statement is largely silent as to her ability to cope with restricted work hours and duties. Her evidence is as follows:
“I stopped working on 31 January 2022 as I was forced to take leave until 7 March. I was asked to provide a clearance letter upon my return. I provided Toll with a clearance from my GP to work suitable duties however, they denied this request.”
43.Implicit in the applicant’s statement is that she was, as at January 2022, fit to work suitable duties, and therefore had some residual capacity. Absent any substantive evidence in support of the contentions in the GP certificates of capacity which contradict the rehabilitation and exercise physiology reports, I am satisfied on the balance of probabilities that the applicant has capacity to work at a level consistent with that which she was undertaking in January 2022.
44.Dr Khan, occupational physician provided an injury management report in which he concluded, appropriately in my view:
“Based upon my assessment, Ms Naidu is currently unfit to perform her normal duties.
However, she does have capacity to perform alternative, light intensity/office-based activities on a part time basis (e.g. 15 hours per week), if such duties are available. She should avoid lifting more than 5 kgs with both hands. Ms Naidu should lift between her waist and shoulder, close to the torso. She should avoid applying torque with her left forearm. Ms Naidu should avoid frequently bending or rotating her neck at work.”
45.Those restrictions are, in my opinion, appropriate and, as noted, the applicant has not sought to contradict the evidence contained within the material relating to her return to work in her statement. Whilst the applicant relies on certificates of incapacity from Dr Lim, general practitioner which certify her as totally incapacitated from 30 March 2022, the evidence does not disclose why the applicant became unable to carry out any work whatsoever. Combined with her statement, in which she indicated she stopped working because of a lack of suitable duties rather than an inability to discharge them, I am not satisfied the applicant has made out a case of total incapacity for the period claimed.
46.Doing the best I can, the contemporaneous evidence on balance discloses a residual earning capacity in the applicant of 15 hours per week on restricted duties from 31 March 2022 to date and continuing.
47.The applicant’s pre-injury average weekly earnings (PIAWE) were agreed to total $1,142.61 per week. The period in issue concerning the applicant’s claim for weekly payments all falls within the second period pursuant to s 37 of the 1987 Act. This being so, the relevant rate will be 80% of the applicant’s pre-injury earnings less the amount that she has for capacity for employment. The amount of the applicant’s ongoing capacity is, noting her hourly rate was $28.56, in my view $428.48 per week.
48.In accordance with the provisions of s 37 of the 1987 Act, as a worker with residual capacity currently working less than 15 hours per week, the applicant is entitled to receive weekly compensation at the rate of 80% of her PIAWE less her current level of capacity. In this instance, that equates to $914.08 less $428.48, or $485.60 per week.
49.For these reasons, the respondent will be ordered to pay the applicant weekly compensation at the rate of $460.60 from 31 March 2022 to date and continuing.
SUMMARY
50.For the above reasons, the Commission will let the findings and orders as set out on Page 1 of the Certificate of Determination.
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