Oakes v PLO Enterprises Pty Ltd
[2024] NSWPIC 204
•23 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Oakes v PLO Enterprises Pty Ltd [2024] NSWPIC 204 |
| APPLICANT: | Lisa Oakes |
| RESPONDENT: | PLO Enterprises Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 23 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Alleged consequential condition to accepted injury; whether proposed temporomandibular treatment is reasonably necessary as a result of workplace injury; applicant suffered accepted upper limb and cervical spine injuries; she alleges she suffered a consequential psychological condition which caused bruxism and jaw dysfunction; respondent alleges the jaw symptoms are not causally connected to the accepted injury and the proposed treatment, which is medically necessary, is not reasonably necessary as a result of the workplace injury; Held – causation in the workers compensation context is determined by way of a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates applied; an examination of the lay and expert evidence establishes a commonsense causal connection between the accepted injury and the requirement for the proposed treatment; the injury at issue gave rise to an increase in psychological symptoms in the applicant, which in turn occasioned her bruxism for which she seeks treatment; the fact the applicant had previously suffered psychological symptoms is not fatal to her case, as the evidence discloses a worsening of those symptoms post-injury; on balance, the proposed treatment is reasonably necessary as a result of the injury at issue, in that there is a material contribution to the need for the treatment by the injury; respondent to pay the costs of and incidental to the proposed treatment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury in the course of her employment with the respondent, with a deemed date of injury of 18 August 2018. 2. As a consequence of the injury referred to (1) above, the applicant suffered a consequential psychological condition and temporomandibular/jaw condition. 3. The temporomandibular/jaw condition is consequent upon the applicant’s injury. 4. The dental treatment carried out by Dr Curtis in March 2023 was reasonably necessary as a result of the consequential condition caused by the applicant’s injury, save for the occlusal splint therapy which is not part of the claim in these proceedings. 5. The respondent is to pay the costs of and incidental to the claimed treatment carried out in 2023 by Dr Curtis. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Lisa Oakes brings proceedings seeking payment by the respondent, PLO Enterprises Pty Ltd for the costs of and incidental to arthrocentesis and manipulation of her left temporomandibular joint carried out by Dr Nigel Curtis in or about April 2023.
The applicant claims the requirement for treatment was brought about as a result of a consequential condition to her jaw caused by sustained bruxism caused by a psychological condition said to have in turn been brought about as a consequence of accepted injuries to her bilateral wrists and shoulders, thoracic spine and cervical spine.
The respondent disputes liability for the applicant’s claim and says there is no causal link between her accepted injuries and the requirement for the claimed treatment.
There is no issue the applicant required the treatment carried out by Dr Curtis. The question for determination is whether the requirement for that treatment was caused or materially contributed to by her workplace injuries.
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is whether there is a requisite causal connection between the applicant’s accepted injuries and the requirement for the treatment carried out by Dr Curtis.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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.
The parties attended a hearing before me on 18 April 2024. Mr McManamey instructed by Mr Hobbs appeared for the applicant. Mr Baker instructed by Ms McCaffrey appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments;
(b) Reply and attachments; and
(c) respondent’s Application to Admit Late Documents (AALD) and attachments lodged on 11 April 2024.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the treatment carried out by Dr Curtis was reasonably necessary as a result of the applicant’s injury
There is no issue the applicant suffered injury in the course of her employment with the respondent to her wrists, shoulders, thoracic spine and cervical spine, with a deemed date of injury of 18 August 2018.
Additionally, the applicant claims she suffered a consequential psychological condition which in turn caused her to grind her teeth and which, she claims, led to the need for the treatment provided by Dr Curtis.
The clinical records in evidence in the proceedings reveal the applicant suffered pre-existing psychological issues, a fact which she has never denied. There is no doubt the applicant was referred for a general practitioner (GP) mental health plan as early as 2010, together with suffering ongoing migraines and other issues from time to time.
The respondent submitted the cause of the applicant’s psychological condition was multifactorial, and on balance was not work-related. For the applicant, Mr McManamey submitted that on a common-sense evaluation of the causal chain, the Commission would be satisfied on the balance of probabilities the increase in the applicant’s psychological conditions were caused by her work-related injury; which was in turn causative of the teeth grinding which led to the requirement for treatment.
Mr Baker referred the Commission to a number of clinical entries which predate the applicant’s claim for physical injury. They confirm the presence of a psychological condition. However, the applicant’s claim is not presented on the basis that she previously had no psychological condition. Rather, the applicant alleges there was a flare-up in her anxiety and panic attacks as a result of dealing with the pain of her admitted physical injuries to the hands and shoulders.
In the workers’ compensation context, the appropriate test for causation was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), where His Honour said:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.” (at 810)
The “results from” principle of causation applies to s 60 claims, but confusion is sometimes created by the fact that s 60 liability also has a requirement that treatment be “reasonably necessary.” The principles relating to causation and reasonable necessity are different and must be kept distinct. In this matter, there is no issue that the treatment provided by Dr Curtis to the applicant was necessary, the issue is whether it was reasonably necessary as a result of the accepted work injury.
The question which is relevant, and highlights the distinction between the “mere but for” and the “common-sense” test for causation is: Did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light a need for treatment that was going to be needed anyway, but that treatment is required now and the option to wait and/or try other treatments has been removed?
A useful decision on the question of causation in the context of medical treatment is that of Deputy President Roche in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18. In that matter, the worker who was a taxi driver was assaulted in the course of his employment. He suffered extensive facial injuries during the assault, which eventually resulted in the loss of four teeth, requiring treatment with a four-unit fixed bridge. At the time of his treatment, it was noted that the applicant had pre-existing periodontitis unrelated to the assault. In 2012, the worker’s bridge broke. In examining Mr Schokman in relation to this issue, the further complication of peri-implantitis was identified, requiring treatment. The insurer denied liability for the treatment related to peri-implantitis and periodontitis, in part due to the worker’s pre-existing periodontitis, as well as his poor oral hygiene and history of smoking.
Roche DP confirmed the arbitrator’s decision in finding that treatment was reasonably necessary as a result of the injury. After referring to the trite law found in ACQ Pty Ltd v Cook (2009) 237 CLR 656 that a condition can have multiple causes, the Deputy President stated on causation:
“It follows that, even if it were accepted that the peri-implantitis was ‘caused’ (in the sense of having been materially contributed to) by the non-work factors listed by Dr Boland, that would not prevent a finding that, as a matter of common sense, the need for the proposed treatment has arisen ‘as a result of’ the injury. That is because, as Dr Roessler explained, the peri-implantitis is ‘only there because Mr Schokman has implants’. This is not a matter of merely saying that ‘but for’ the presence of the implants Mr Schokman would not have the peri-implantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment because it brought about the need for the implants, even if other factors were also present that may have also contributed to that need.” (at [54])
In this matter, I am persuaded for the following reasons on the balance of probabilities that the requirement for the treatment carried out by Dr Curtis as claimed by the applicant was brought about as a result of her work-related injury.
Dealing firstly with the applicant’s psychological condition, I have no difficulty in finding the effects of her accepted physical injuries have led to a consequential worsening of her condition.
In his thorough and erudite submissions, Mr Baker took the Commission to a number of clinical entries which revealed the applicant had some significant pre-existing psychological issues. The applicant does not deny this is the case.
However, the clinical records also reveal a clear worsening of the applicant’s condition as a result of the physical injuries caused by her employment. As Mr McManamey noted, between 2008 and 2015 the applicant had a number of referrals for psychological treatment. Before the deemed date of injury, the last GP mental health plan to which the applicant was referred was in 2015. There was then no further mention of anything relating to psychological treatment until 9 April 2019. On that day, the applicant consulted her long-time GP, Dr McDowell who recorded the following entry:
“1. Hands no better.
Seeing Dr Marchellek again next week.
To have MRI beforehand.
2. Now left shoulder just as painful if not more so than right
For bilateral U/S.
3. Flare up of anxiety and panic attacks.
Dealing with the pain of her hands and shoulders taking its toll.
Mental health care plan completed.
Referral psychologist.”
I accept Mr McManamey’s submission that this entry plainly reveals the applicant had suffered a consequential psychological reaction after having no treatment for any mental health issues for approximately three years before the injuries to her arms and shoulders.
Mr McManamey submitted, and I accept, that in the context of a factual investigation into questions of causation, it is not necessary for a finding to be made that there was a recognisable psychological or psychiatric condition as required by s 4 of the 1987 Act. The applicant does not seek payment of compensation for such a condition in these proceedings, and that submission was not challenged by the respondent at the hearing. Rather, in the context of this matter, I accept the question is whether the psychological condition forms part of the causal chain which ultimately leads to the applicant requiring treatment as dispensed by Dr Curtis.
There is no question that a worker is not required to satisfy the requirements of an injury pursuant to s 4 of the 1987 Act in establishing a consequential condition: see for example Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and Moon v Conmah Pty Ltd [2009] NSWWCCPD 134.
In this matter, I am satisfied that the applicant has complained of a worsening of psychological symptoms and that there is an unbroken chain of causation from the accepted injury and her attempt to deal with it to that condition. The psychological condition is, therefore, consequential or secondary to her accepted physical injuries.
The next question for determination is whether, on a commonsense basis, the grinding of the applicant’s teeth which gave rise to the requirement for treatment by Dr Curtis has been brought about by her psychological condition. In my view, the preponderance of the lay and medical evidence comfortably satisfies me on the balance of probabilities this is the case. In her statement, the applicant said:
“14. As a consequence of my physical injuries, I have developed a lot of anxiety and tension as I struggle to deal with the pain associated with these injuries and the effect they have on my life. When I am experiencing pain or anxiety, I have a tendency to clench my teeth. This habit has become chronic. As a consequence of this habit, I experience pain in my jaw, earaches, headaches and pain and stiffness from my jaw down my neck.
15. Due to this condition and these issues, I was referred by my general practitioner to Dr Nigel Curtis, oral and maxillofacial surgeon. Dr Curtis has indicated to me that I have temporomandibular joint dysfunction and myofascial pain in my jaw as a consequence of the psychological stress and pain associated with my wrists, shoulders, back and neck injuries which causes me to clench and grind my teeth. Dr Curtis indicated that I should have surgery in the nature of arthrocentesis and manipulation of the right and left temporomandibular joints as well as Botox injections and a splint to help alleviate these symptoms.”
Mr Baker noted that the applicant had visited Dr McDowell on 20 January 2017, and a history was recorded of longstanding periodic migraines which had been worsening over the past two months. On that occasion, Dr McDowell indicated the applicant should “consider mouthguard to prevent teeth grinding”, a matter which Mr Baker submitted was indicative of the applicant’s jaw problems being unrelated to any work condition. However, there is no evidence the applicant was prescribed such a mouthguard or ever used it. Moreover, the applicant attended on Dr McDowell on no less than 10 further occasions before the deemed date of injury, with no reference to grinding of teeth or ongoing jaw issues. As Mr McManamey noted, the entry on 20 January 2017 referred to the possible prescription of a mouthguard “to prevent” teeth grinding and did not state that such grinding was already present. Indeed, the applicant’s issues at that time referred to periodic teeth grinding as a result of headaches, whereas after the physical injuries at issue, her teeth grinding became, on her evidence and that of her treating practitioners, constant.
Dr McDowell provided answers to questions from the respondent’s insurer, during which she initially stated that the applicant’s jaw and mouth problems were not work-related. It should, however, be noted this opinion was provided before Dr McDowell had the benefit of the views of Dr Curtis, treating specialist. In a report dated 4 July 2023 to the applicant’s solicitors, Dr Curtis provided the following history:
“2. Mrs Oakes was referred to me by her general practitioner, Dr Jill McDowell, on 19 April 2021 complaining of ongoing chronic temporomandibular joint dysfunction secondary to the work accident and due to a stress disorder related to the work injury which has resulted in a jaw-clenching habit. Following clinical and radiographic examination, including an MRI of the temporomandibular joints, dated 20 February 2023, indicates [sic] internal derangement of the left temporomandibular joint and arthrosis of the right temporomandibular joint in this case…
3. The internal derangement and dysfunction in the temporomandibular joints and myofascial pain in the muscles of mastication, chiefly the masseter muscles, does conform with the stress-related disorder described above, resulting in jaw clenching. The stress-related jaw clenching is related to the work injury as detailed by Mrs Oakes’ general practitioner and physiotherapist and occurs due to stretching of the joint meniscus causing distortion and internal derangement, and stretching of the muscles of mastication causing inflammation and pain in this region. These features do reduce Mrs Oakes’ ability to chew hard foods.”
Mr Baker submitted that Dr Curtis’ views in relation to causation were informed by those of the applicant’s physiotherapist, who provided a one-line statement as to causation, and were also influenced by Dr McDowell’s opinion. On balance, I reject that submission. Dr Curtis, as a treating surgeon, has provided a detailed explanation of causation in his own right, and not simply relied on the views of other practitioners. Moreover, as a treating specialist, Dr Curtis’ views are entitled to receive considerable weight unless it can be shown that they were informed by either a poor history or alternatively demonstrate a readily-identifiable error. In my view, no such issue has been made out and accordingly Dr Curtis’ opinion is worthy of considerable weight. I accept it.
It should also be noted that the respondent provides no independent medical examiner (IME) opinion to contradict that of Dr Curtis. Adopting a common-sense evaluation of the causal chain, in my view the evidence in this matter is overwhelming. The applicant suffered accepted bilateral shoulder and arm injuries. She also suffered injuries to her cervical spine, and I accept her evidence that as a result of those injuries she suffered a consequential psychological condition which in turn led to her constant grinding of teeth and to the requirement for the treatment carried out by Dr Curtis.
It therefore follows, in my view, that the applicant’s injury made a material contribution to the need for the treatment carried out by Dr Curtis in 2023, and the respondent will accordingly be ordered to pay the costs of and incidental to that treatment.
Additionally, the applicant sought to place some weight on the fact that the respondent had previously paid for similar treatment carried out by Dr Curtis in or about 2021. For its part, the respondent issued a s 78 notice in which it indicated the payment of that treatment was a mistake on its behalf.
Given my findings in relation to the substantive medical dispute in this case, it is not necessary in my view to make a finding as to the effect, if any, of any admission sought to be relied on by the applicant, and in making my above findings I have placed no weight on the prior payment of the medical treatment.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out in the Certificate of Determination.
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