Newitt v Combined Roofing Australia Pty Ltd
[2024] NSWPIC 433
•13 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Newitt v Combined Roofing Australia Pty Ltd [2024] NSWPIC 433 |
| APPLICANT: | Jonathan Geoffrey Newitt |
| RESPONDENT: | Combined Roofing Australia Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 13 August 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Applicant claimed an incident at home in 2021 was an aggravation to a previous workplace injury sustained in 2018; causation; Held – the incident in 2021 and consequent incapacity was not causally related to the injury sustained in 2018. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant was injured in the employ of the respondent on 8 June 2018. 2. That injury resolved by 19 June 2018 or shortly thereafter. 3. The applicant’s current incapacity for work is not causally related to the injury of 8 June 2018. The Commission Orders: 1. An award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Mr Johnathan Geoffrey Newitt (the applicant) was employed by Combined Roofing Australia Pty Ltd (the respondent) as an operations manager. He performed roofing work in the course of that employment.
The applicant alleges that he suffered an injury at work with the respondent on 8 June 2018 (the 2018 injury).
The applicant alleges that, whilst at home in June 2021, he suffered an aggravation to the 2018 injury.
MATTERS IN DISPUTE
Both injury and incapacity were in dispute.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Carney of counsel, instructed by Mr Vukic of PK Simpson and Co. appeared for the applicant. Mr Doak of counsel, instructed by Ms Ralph of Bartier Perry Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours to attempt 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 were 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 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;
(c) Application to Admit Late Documents filed on 5 June 2024;
(d) Wages Schedule filed on 2 June 2024, and
(e) statement of Mr Bruce Alchin dated 22 November 2023.
I have decided that it is appropriate in the circumstances of this case to firstly consider and determine injury.
The applicant’s evidence regarding injury
The applicant alleged that he suffered an injury on 18 June 2018 in the following circumstances:
“45. At the time of the injury I was lifting heavy stainless steel box gutters from the ground up through a scaffolding tower, followed by up and across multiple roof pitches. The gutters weighed approximately 30 kg. They were approximately 3.5 meters long.
46. I’d been instructed to carry out this task by Ryan Andrews of Combined Roofing the day prior to the incident. I had organised two labourers to carry out the task although Ryan objected because he said this would incur extra cost on the job and told me I should meet him on site and he would show me how it was done.
47. I objected to performing the manual work myself but Ryan insisted we should “get on with it”.
48. On the morning of the injury I met Ryan on site. There was also another worker who was working as a trades assistant. I can’t recall his name right now. He was helping me lift the gutters at the time of the injury.
49. Before the work started I recommended we should use a crane to lift the gutters on the roof. Ryan rejected this and showed how to lift the gutters and get them up onto the roof as an example.
50. We carried several box gutters up from the ground up onto the roof and across the roof into position. This occurred between the hours of 7 AM and 10 AM at which time the job had been completed.
51. I left site at around 10 AM and was required to attend a meeting at around 10:30 AM. I continued my administrative duties for the rest of the day and wasn’t required to do any further manual work. I left work at around 4 PM which was my normal finishing time.
52. Sometime on or around the following day I began to experience pain in my lower back. I went to see my GP almost straightaway and the doctor referred me for a lower back scan. When the results came back they showed I had a ruptured disc in my lower back.
53. I was issued a medical certificate for two days off work.
54. When this happened I had already been subject of two formal written warnings and I believed my job was in jeopardy. I didn’t want to make any additional trouble for myself and further jeopardise my employment so I didn’t make any effort to lodge a workers compensation claim at the time. I don’t believe there was a formal injury report submitted.
55. I did take the two days off work and returned to my normal duties after this. I was able to continue working my usual duties although I was experiencing pain whilst doing it. I was having difficulty with things such as getting in and out of the car and would have to pull myself up out of my seat by using the doorframe of the vehicle.
56. I was not receiving any other formal medical treatment during this period. I think I may have been prescribed some Endone at the time.
57. I didn’t make any complaints about my injury to anyone at work and I just carried on working because I believed if I made any complaints I would be putting my job in jeopardy.
58. I continue working in this way for a period of around 3 to 4 months. I had been doing some yoga during this period which helped. During this period, the pain got much better and the injury seemed to have fully recovered.”[1]
[1] ARD page 10 and 11.
The applicant consulted Dr Valerie Qu on 12 June 2018 and 19 June 2018.[2] He obtained a medical certificate for two days absence from work.
[2] ARD page 101 and 100.
The applicant’s evidence was that his only prior back related injury was a muscle spasm sustained when he was 15.
In response to a suggestion by the respondent that the work or injury alleged by the applicant did not occur, the applicant obtained a statement from a Mr Bruce Alchin[3] who confirmed that the work described by the applicant was performed for the respondent between 25 May 2018 and 8 June 2018. The statement did not assist in resolving whether an injury occurred on 8 June 2018.
[3] ARD page 37.
The applicant explained that his failure to report his injury or make a claim until 2021 had arisen from his apprehension about the possibly of losing his employment. There were disciplinary issues.
In his statement he outlined the medical treatment and investigations he subsequently undertook after this injury.
The applicant further alleged that on 4 July 2021 he sustained an incapacitating aggravation of his 18 June 2018 back injury. He was at home when he experienced a sudden sharp pain. The description of events varies in the notes of various practitioners.
The applicant relied on medical support from Dr Stephen, Independent Medical Examiner (IME), who provided a report[4] to the respondent and the report of Dr Martyn Baker of29 June 2023.[5] Dr Martyn diagnosed a lumbar disc protrusion which was aggravated at a later date, an adjustment disorder with depression and a post-traumatic stress disorder. He stated that the applicant’s incapacity arose from the following factors:
“Mr Newitt has reported increasing degrees of severity in his back injury symptoms over time which have affected his ability to function in terms of his work capacity and his ability to earn an income. His initial documented back injury was on 08/06/2018. His aggravation of that injury was on 28/06/2021which initiated his workcover claim. His low back pain with right sciatica has increased with time. Psychological stress has created increasing mood disorder due to the impact of his pain on his capacity to work gainfully. His financial stress has been significant. His mood change includes anxiety, depression, anhedonia and fear for the future which results in excessive rumination. His mood has been further aggravated by stress induced tinnitus.”
[4] ARD page 66.
[5] ARD page 76.
The respondent’s evidence regarding injury
Dr John Stephen provided a report[6] to the solicitors for the respondent dated
28 September 2023. Dr Stephen concluded that prior to 8 June 2019 the applicant’s back was not 100% but was tolerable. He considered that the incident in June 2018 produced an exacerbation of symptoms which had largely settled. He concluded that the event of July 2021 was probably the most significant incident of injury and resulted in significant lumbosacral damage including a sequestrated disc prolapse with right-sided S1 nerve root compression. In reaching this conclusion he relied on a description of the incident in 2021 as involving a significant fall, and not simply having spontaneously occurred on the applicant arising from his couch as the applicant had described the incident to him. He came to this conclusion regarding the nature of the injury after reading the notes from Coogee Physiotherapy dated 23 September 2021, which contain an entry describing a fall from a chair onto the floor.
SUBMISSIONS
[6] ARD page 68.
The applicant’s submissions regarding injury
The applicant relies on his own evidence regarding injury, the evidence of Mr Alchin regarding the work being performed for the respondent by the applicant, the report of
Dr Stephen and the support of Dr Martyn Baker in his report of 29 June 2023.[7][7] ARD page 76.
The respondent’s submissions regarding injury
The respondent noted the applicant’s failure to inform any of his treating doctors of the 2018 injury and the sporadic nature of his consultations.
The respondent also relied on various inconsistencies in the applicant’s version of events.
The respondent criticised the report of Dr Martyn Baker as comprising a bare assertion of a diagnosis without any medical support and which was reliant entirely on the history provided by the applicant.
Counsel for the respondent referred to the MRI[8] conducted 15 June 2018 which noted:
“Clinical Indications:
Intermittent lower back pain since 8 June 2018 radiating to bilateral sacrum.
Previous back injury lumbar region aged 15 years old. ?disc pathology
….
Impression:
Small left posterolateral annular tear of the L5/S1 disc. Mild focal left
foraminalL4/L5 disc protrusion causing mild left neural foraminal narrowing
which could be irritating the exiting left L4 nerve root.”
[8] ARD page 80 and 81.
Counsel contrasted those MRI findings to those of a CT[9] of the lumbar sacral spine conducted on 10 July 2021 which noted:
“At L5/S1 there is a diffuse circumferential disc bulge. However, there is a more focal moderately large disc extrusion. This extends to the sub articular recess on the right. It measures at least 12 mm x 13 mm transversely. It is indenting along the anterior aspect of the thecal sac and is impinging on the right S1 nerve root. This was not previously present. No neural foraminal stenosis at this level.”
(my emphasis)
[9] ARD page 82 to 83.
These findings were confirmed by an MRI[10] conducted on 15 July 2021.
[10] ARD page 84.
CONSIDERATION REGARDING INJURY
I am not persuaded that the 2021 incident, in which ever circumstances it occurred, was an aggravation of the 2018 injury.
I am not persuaded that the applicant’s incapacity subsequent to the 2021 incident has any causal relationship with the 2018 injury.
Whilst I am persuaded that the applicant did suffer an injury on 8 June 2018 I am satisfied and find that the 2018 injury resolved by 19 June 2018 or shortly thereafter.
The applicant consulted Dr Qu on12 June and 19 June 2018. He did not make mention of any work-related injury at either of these consultations. Whilst the applicant may have been wary of making a workers compensation claim in case it endangered his employment, there is no apparent explanation for his failing to mention a possible work-related causation to his general practitioner. Had he done so it would have more probably than not been noted.
The applicant alleges that he did not lodge a claim for workers compensation because of the inhibition he felt regarding his job security. That inhibition should have disappeared after he left the employment of the respondent. Despite that he did not claim.
Dr Qu, the general practitioner who the applicant consulted on 12 June 2018 following the 2018 injury, noted that the applicant’s back pain had resolved. The applicant had no symptoms on 19 June 2018. There was a discussion regarding the findings of an MRI and possible nerve root impingement. There was no mention of a work injury.[11]
[11] ARD pages 101 and 100.
I am persuaded that the applicant may have not notified an injury or lodged a claim for the reasons he proffered, but that also he did not do so because his injury was not significant or continuing. It had resolved by 19 June 2018 or shortly thereafter.
The applicant continued to occasionally see a doctor for back pain. counsel for the applicant described the applicant’s medical regime following the 2018 injury as not being regular. It wasn’t. Nor were the consultation notes helpful in linking his back pain to the 2018 injury.
Examples of the consultation notes are extracted below.
The applicant visited Dr Carol on 15 April 2021. She noted minor low back pain. Her notes[12] are as follows:
“previous back injury from 15 years ago yoga helped years ago but stopped for a long time now sitting down job”
(my emphasis)
[12] ARD page150.
On 28 June 2021 the applicant consulted Dr Carol Ho.[13] She noted his information as follows:
[13] ARD page 154.
“when younger back injury from lifting
No scans done previously
Stiff after prolonged sitting
been doing stretches & yoga but without relief
keen to get med today for pain relief
last script from June 2020 (50tablets given),
now all used discussed & explain Valium addictive & will only give 5 tabs.
happy to write Mobic to take after meals
Diagnosis:
Back pain”
(my emphasis)
On 29 June 2021 the applicant attended Dr Naomi Jacobs. Her notes are as follows:
“yesterday work up with back pain lower back
slipped over and 2 days later sitting on couch felt pain
woke up yesterday difficulty walking
last night given Mobic and diazepam
…
Reason for visit:
review back pain”
…
Better when lying on back”
(my emphasis)
I have given no weight to Dr Baker’s report. I consider that it is no more than a bare assertion of fact based solely on the applicant’s history.
I have considered Dr Stephen’s report and taken into account his findings. I accept his conclusion that a vulnerability from the applicant’s injury as a young man remained with him. I consider that it is more probable than not that the early injury referred to in the applicant’s general practitioner consultations is the injury that he suffered when he was 15 years old.
I make the following findings:
(a) on 8 June 2018 the applicant suffered an aggravation to an underlying back condition which arose from a back injury he suffered when he was 15 years old;
(b) that aggravation had ceased by 19 June 2018 or shortly thereafter;
(c) in the subsequent three years the applicant suffered flareups for which he consulted various general practitioners at extended intervals;
(d) those flareups did not cause him to cease work;
(e) in June 2021 the applicant suffered a major aggravation to his underlying back condition whilst at home which has incapacitated him for work, and
(f) the 2021 incident and the applicant’s resultant incapacity for work has no causal connection to the 2018 injury suffered by the applicant in the employ of the respondent.
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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