Orr v Rostin Pty Ltd t/as Highland Glass
[2022] NSWPIC 594
•26 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Orr v Rostin Pty Ltd t/as Highland Glass [2022] NSWPIC 594 |
| APPLICANT: | Nigel Orr |
| RESPONDENT: | Rostin Pty Ltd t/as Highland Glass |
| Member: | John Isaksen |
| DATE OF DECISION: | 26 October 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Order sought by worker for the respondent to meet cost of C4/5 anterior cervical decompression and fusion; worker provides three possible causes of injury for condition affecting the cervical spine; reference to AV v AW and State Transit Authority v El-Achi on claim of disease injury to the cervical spine; Held – worker has sustained a condition affecting his cervical spine as a consequence of an injury to the right forearm but that injury does not materially contribute to the need for surgery; award for the respondent for a claim for a frank injury to the neck; worker sustained a disease injury pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) and that injury materially contributes to the need for surgery; order made pursuant to section 60(5) of the 1987 Act. |
| determinations made: | 1. The applicant has sustained a consequential condition affecting his cervical spine as a result of injury sustained on 24 September 2013, but the need for surgery to the cervical spine does not result from that injury. 2. Award for the respondent for the claim made by the applicant that he sustained injury to his cervical spine on 13 August 2014. 3. The applicant sustained an injury to his cervical spine in the course of his employment with the respondent by way of a disease injury pursuant to s 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 6 January 2016. 4. The C4/5 anterior cervical decompression and fusion proposed by Dr Darwish is reasonably necessary as a result of the injury sustained by the applicant on 6 January 2016. |
| ORDERS made: | 1. Pursuant to s 60(5) and s 61(4A) of the Workers Compensation Act 1987, the respondent is to pay for the C4/5 anterior cervical decompression and fusion proposed by 2. The respondent is to pay the costs of reasonably necessary medical treatment for the applicant’s cervical spine as a result of the injury sustained on 6 January 2016. |
STATEMENT OF REASONS
BACKGROUND
Nigel Orr, the applicant in these proceedings, seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent, Rostin Pty Ltd trading as Highland Glass, pay the costs of a C4/5 anterior cervical discectomy and fusion proposed by Dr Darwish, and costs reasonably incidental to that surgery, as a result of injury sustained by Mr Orr in the course of his employment as a furnace operator with the respondent.
Mr Orr also seeks the payment by the respondent of medical expenses incurred for treatment of his cervical spine as a result of injury sustained in the course of his employment with the respondent.
Mr Orr claims that he has sustained an injury to his cervical spine which has been caused by some or all of the following:
(a) as a consequence of an injury he sustained to his right forearm on
24 September 2013;(b) when he was lifting a 70 kg pane of glass with a co-worker on 13 August 2014, and
(c) as a disease of gradual onset due to the nature of the work he undertook for the respondent from 2010 to 6 January 2016.
The respondent does not dispute that Mr Orr has pathology in his cervical spine which warrants the surgery proposed by Dr Darwish, but it disputes the various claims of injury made by Mr Orr and that the need for surgery is as a result of any of those alleged injuries.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his cervical spine in the course of his employment with the respondent (s 4 of the 1987 Act), and
(b) whether the C4/5 anterior cervical decompression and fusion proposed by
Dr Darwish results from any injury sustained by the applicant in the course of his employment with the respondent (s 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 20 October 2022. 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.
Mr Stephen Hickey appeared for the applicant, instructed by Mr Quinn and Mr Webb.
Mr Stockley appeared for the respondent, instructed by Mr Thorne.The respondent withdrew defences pursuant to ss 254 and 261 of the Workplace Management and Workers Compensation Act 1998 (the 1998 Act) which had been set out in dispute notices.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) the Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 5 August 2022;
(d) Application to Admit Late Documents filed by the applicant on 30 August 2022, and
(e) Application to Admit Late Documents filed by the applicant on 14 October 2022.
Oral evidence
Leave was granted to the respondent to cross examine the applicant. The cross examination of the applicant was mainly in regard to the injury the applicant alleged he sustained on
13 August 2014 and his subsequent attendances for treatment of his cervical spine.
FINDINGS AND RREASONS
Whether the applicant has sustained a consequential condition affecting his cervical spine as a result of the injury to his right forearm on 23 September 2013
The lay evidence
On 24 September 2013 Mr Orr was lifting a large pane of glass when it broke, and he sustained a laceration to his right forearm. Mr Orr was taken to Bowral Hospital where the wound was sutured. The respondent has admitted liability for this injury.
Mr Orr underwent surgery on the right forearm on 11 November 2013, performed by
Dr Hartnell. He states that he returned to work following that surgery on 13 January 2014. He states that he was supposed to be given light duties but that did not occur and that he was required to process glass in the morning and work in his pre-injury job as a furnace operator in the afternoon.Mr Orr has set out his work duties as a furnace operator and processing glass in a statement dated 13 December 2021.
Mr Orr states that the work of a furnace operator involved lifting glass panels which weighed between 15 and 80 kg to be put in a furnace to be strengthened and tempered. He was also required to lift smaller panes of glass. Mr Orr states that glass handling was done manually and without the assistance of lifting devices. He states that a co-worker, David Potts, would assist with lifting heavier and larger panes of glass.
Mr Orr states that the work of processing glass also involved lifting panels of glass which weighed between 15 and 80 kg to be put into an arris machine to take sharp edges off untreated panes of glass. He states that this was also a manual job which was undertaken without the assistance of a lifting device.
Mr Orr states that he complied with the demand made by the respondent to do the jobs of furnace operator and the processing of glass after his injury in September 2013 because he feared he would lose his job. He states that he undertook his post-injury work duties in such a way whereby he tried to protect his right arm. He states that he relied upon his left arm and used the left side of his body to lift and move glass. He states that this placed pressure on his left arm, left shoulder and neck. However, Mr Orr states: “I had no problems with my neck or either of my shoulders prior to my injury on 13 August 2014”.
David Potts has provided a statement dated 27 February 2022. Mr Potts states that Mr Orr returned to work in late 2013 or early 2014 following the injury he sustained to his right forearm and was required to work as a furnace operator in the morning and on the arris machine in the afternoon. He states that those were not “light duties” jobs and that he observed that Mr Orr was struggling to carry out his duties because of his injured right arm.
Mr Orr states that his employment with the respondent was terminated in early 2016. He had undergone another operation on his right arm in December 2014, and then a further operation in September 2016.
Mr Orr states that he complained to doctors at Hilltop Surgery about his neck and left shoulder, but he was ignored until September 2018 when Dr Rahman finally listened to his complaints and Mr Orr was referred for scans.
In cross examination, Mr Orr said that his doctors did listen to him regarding complaints about his neck and he was told that it was just muscle damage or just a “flare up” and would calm down over time. He said that he had learned to live with the pain in his neck, but it got so bad by August 2018 that he decided to “pipe up” to his doctors because “enough was enough”.
The medical evidence
Dr Hartnell, orthopaedic surgeon, initially saw Mr Orr on 31 October 2013. Dr Hartnell writes in a report on that same date that Mr Orr’s injury to the right arm was underestimated when he attended hospital immediately following the injury on 24 September 2013, and he diagnosed Mr Orr as having ruptured a tendon and required surgery.
There is no reference to any neck symptoms in the reports from Dr Hartnell which are in evidence, or in the reports from Dr Nicholas Smith who took over the specialist care of Mr Orr in May 2016.
A review of the clinical records from Hilltop Surgery does not reveal any record of Mr Orr having neck symptoms from his return to work in January 2014 following his first operation until 7 August 2018, except for a note on 24 March 2016 of Mr Orr waking “hourly because of painful neck”. Dr Rahman records on 7 August 2018: “neck pain for long time” and “after the injury worked for 2 years with left hand”.
Dr Cawthorne completes a questionnaire for Employers Mutual on 21 January 2016 wherein he writes: “he has over-compensated using left arm causing neck pain & left shoulder pain”.
There is a report from Ms Menzies from ‘Hands On Hand Therapy’ dated 28 August 2019 which sets out details of Mr Orr’s treatment from 26 November 2013 until 25 October 2018. Ms Menzies records on 17 October 2014 that Mr Orr was lifting a sheet of glass with a colleague in approximately June 2014, and trying not to overload his right arm, when Mr Orr felt a sharp pain in his neck.
Ms Menzies also records that sometime after Mr Orr underwent surgery in September 2016: “Bilateral shoulder and neck pain continued to be reported as well as left arm pain secondary to overuse/compensation”.
Mr Orr was assessed by Dr McGroder, Approved Medical Specialist, in July 2018 for a lump sum compensation claim for whole person impairment of the right upper extremity and scarring for the injury sustained on 24 September 2013. There was no claim made for any permanent impairment of the cervical spine as a consequence of the injury to the right upper limb. There is no reference to any neck symptoms in the Medical Assessment Certificate dated 20 July 2018.
Dr Darwish initially saw Mr Orr on 6 May 2019. A report of the same date records the laceration injury that Mr Orr sustained to his right forearm and also an injury around
June 2014 when Mr Orr was lifting a panel of glass with a colleague weighing 70 kg and he felt cramps in his neck.Dr Darwish does not specially record any overuse of the left arm or regular shifting of the body to reduce the use of the injured right arm by Mr Orr in a report to Dr Rahman dated
6 May 2019 and 20 April 2020. Dr Darwish does write: “I believe that the C4/5 disc protrusion is caused by the work related injury as prior to that, he was completely asymptomatic”.Dr Darwish provided a report at the request of Mr Orr’s solicitors dated 15 March 2022. The report refers to an “updated statement” from Mr Orr and Dr Darwish provides answers to eight questions asked of him. Dr Darwish is asked:
“Is it probable that had Nigel not suffered his laceration injury to his right arm on 23 September 2013 he would not have the significant degenerative conditions as noted from MRI scanning and reports dated 19 & 20 November 2018?”
Dr Darwish answers:
“I don't believe that the laceration of the right arm has contributed in any form to the degenerative process in the cervical spine. It may have contributed to the degenerative process in the left shoulder.”
Dr Darwish is also asked:
“(i) What percentage of degenerative change in each of Nigel's cervical spine and left shoulder is likely to be due to the effect of his right arm laceration injury and his resulting compensatory use of his left arm and changed body habitus when lifting and carrying thereafter; and
(ii) If the answer to (i) above is not possible, please state what pathological elements of or changes seen on MRI scanning are likely to be due to the effect of his right arm laceration injury and/or any resulting compensatory use of his left arm and changed body habitus when lifting and carrying thereafter.”
Dr Darwish answers:
“I can’t answer this question with any certainty. My best guess is 10% for the cervical spine and 30% for the left shoulder.”
Dr Patrick, general and vascular surgeon, has provided reports to Mr Orr’s solicitors dated
3 July 2017, 14 August 2019, 31 July 2020 and 10 June 2022.There is no reference in Dr Patrick’s first report to Mr Orr having any neck symptoms except for some neck stiffness because he is not able to use his arms normally.
It is recorded in Dr Patrick’s next report dated 14 August 2019 that Mr Orr was not given light duties after his first operation and lifted and handled sheets of glass with his relatively uninjured left side of his body. Dr Patrick writes:
“As time went on he became increasingly aware of neck pain and left shoulder pain and this was mentioned on a number of occasions to his treating doctors (GP's) some of whom had very limited English language skills.”
Dr Patrick records that there “was some aggravation to the right forearm on about
13 August 2014”.Dr Patrick writes that it appears that Mr Orr was placing an undue load on his left arm and neck and utilising the left side of the body more due to his significant right arm problems.
Dr Patrick concludes in that second report that he believes it more likely than not that
Mr Orr’s current issues with his left shoulder and cervical spine are as a consequence of the effects of the work related injuries on 24 September 2013. Dr Patrick writes:“…the pathology shown now at MRI cervical spine and MRl left shoulder are very consistent with the type of work he had been carrying out subsequent to the significant workplace injuries of September 2013.”
The third report from Dr Patrick dated 31 July 2020 is produced after he is provided with reports from Dr Darwish and is also informed that Mr Orr felt excruciating pain sometime in June 2014 when he was lifting and handling glass with a fellow worker.
Dr Patrick opines:
“I can confirm that it is my strong opinion that the C4/5 anterior cervical discectomy and fusion (ACDF) surgery as recommended by Dr Darwish is both reasonable and necessary and is consequential on the 24 September 2013 injury, coming to a head in about June 2014 when he was lifting a panel of glass weighing 70kg with a workmate with twisting lo the back and cramping in the neck, with radiation of pain to both shoulders, and he has been off work completely since 2016.”
In his final report dated 10 June 2022, Dr Patrick writes:
“It is my opinion that any such degenerative condition and indeed relevant condition at cervical spine and left shoulder, as noted on the MRI scanning of cervical spine and MRI left shoulder has definitely more likely than not, been materially contributed to by Nigel Orr's compensating and adopting a changed body habitus in order to perform his lifting and carrying activities at work from 23 September 2013, and between the surgical procedures (just during the periods he was at work) noting that he was finished up in December 2015 (with termination on 6 January 2016 a short time later).”
Dr Patrick concludes:
“It is my opinion that the conditions and including degenerative condition of Nigel Orr's cervical spine and left shoulder are indeed each in part due to:
a)Nigel Orr compensating and adopting a changed body habitus in order to perform his lifting and carrying activities at work from 23 September 2013, and between surgical procedures to his right forearm up to December 2015 (termination noted as 6 January 2016, and thus consequential to some degree to the injury of 23 September 2013, and
b)The heavy nature and conditions of his work for the entirety of the period worked for the glass factory between 2010 and December 2015. I feel strongly regarding this.”
Determination
The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45-46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang. In Kooragang Kirby P said at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Kirby P then said at [463-4]:
“…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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
Mr Orr sustained a serious injury to the right forearm on 24 September 2013 which involved a rupture of a tendon and led to him undergoing three operations. Nonetheless, Mr Orr claims that the work duties he returned to about two months after the first operation performed by Dr Hartnell were very much the same as what he was doing before his injury, even though he was supposed to be on “light duties”. He states that he was still required to lift sheets of glass up to 80 kg in weight and that he relied upon his left arm and used the left side of his body to lift and move items of glass. That work continued for another two years except for a period when Mr Orr underwent a second operation performed by Dr Hartnell in December 2014.
That evidence from Mr Orr is supported by the evidence of a co-worker, David Potts. The respondent has not provided any evidence to challenge the evidence from Mr Orr or
Mr Potts.Mr Stockley for the respondent submits that there is no material from any of Mr Orr’s treating doctors of symptoms in the neck due to a change in postural approach because of the right arm injury.
There is the answer given by Dr Cawthorne to Employers Mutual that Mr Orr has “over-compensated” with the use of his left arm, causing neck pain, although this opinion is given with the benefit of hindsight after Mr Orr had ceased employment with the respondent.
The record made by Ms Menzies that Mr Orr had bilateral shoulder and neck pain, “as well as left arm pain secondary to overuse/compensation”, sometime after Mr Orr underwent surgery in September 2016, was also made when Mr Orr was no longer working for the respondent.
Dr Darwish does not make any reference to Mr Orr’s neck symptoms being as a consequence of the right forearm injury, until he is specifically asked by Mr Orr’s representatives. Even then the answers he provides are ambiguous. He states that he does not believe that the laceration injury to the right arm has contributed to the degenerative process in the cervical spine (although it may have contributed to the degenerative process in the left shoulder). Yet he also makes a guess that 10% of the degenerative change in the cervical spine is due to the injury to the right forearm and Mr Orr’s change in body habitus to compensate for that injury.
Mr Stockley concedes that Mr Orr could have experienced some symptoms in the neck as a consequence of the injury to the right arm, which is consistent with the “common sense evaluation of the causal chain” referred to in Kooragang, although Mr Stockley notes that in Kirby P in Kooragang also refers to the need for expert opinion “where applicable”.
Dr Patrick provides the applicable expert opinion. He concludes that Mr Orr’s current issues with his cervical spine are as a consequence of the effects of the injury on
24 September 2013.In Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 (Arquero), which was also a dispute where the worker was very much dependent on the opinion evidence of Dr Patrick, DP Wood said at [143]:
“As a general proposition, a decision maker is not obliged to accept evidence on the basis that there is no evidence to the contrary. However, the evidence was consistent with the historical medical evidence and Mr Arquero’s statement evidence. It was not inherently incredible, and provided a logical basis on which the necessary causal connection could be established.”
Although I have already noted the lack of “historical medical evidence” in this dispute, Mr Orr provides compelling evidence, supported by Mr Potts and not challenged by the respondent, of placing strain and pressure on the left side of his body and away from his injured right arm, and I consider it is “not inherently incredible” that this would have caused some symptoms in the neck and left shoulder.
In my view there is a causal chain between the need for Mr Orr to place additional strain and pressure upon the left side of his body when he was still required to lift heavy items of glass because of the serious injury he had sustained to his right forearm, and the onset of symptoms in the neck and left shoulder, which is supported by the opinion of Dr Patrick.
I am therefore satisfied that Mr Orr has experienced restrictions and symptoms in his cervical spine as a result of the injury to his right arm.
However, Mr Orr needs to go further and establish that the need for the C4/5 anterior cervical decompression and fusion proposed by Dr Darwish results from the injury sustained on
24 September 2013.
Whether the need for surgery to the cervical spine results from the injury sustained by the applicant on 24 September 2013
The relevant test is set out DP Roche in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) at [57- 58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
Mr Hickey referred to the guess made by Dr Darwish that 10% of the degenerative change in the cervical spine could be due to the injury to the right forearm and Mr Orr’s change in body habitus to compensate as being one of “multiple causes” for a condition referred to in Murphy. However, I have already noted the ambiguity in the answers provided by Dr Darwish as to whether he considers the injury that Mr Orr sustained to his right arm has been a cause of Mr Orr’s neck condition.
Furthermore, Dr Darwish is not asked if the injury to Mr Orr’s right arm materially contributes to the need for the surgery that Dr Darwish has proposed, which is a decompression and fusion to one specific level of the cervical spine. It is difficult to be satisfied that the need for surgery is as a consequence of the injury to the right arm when that issue is not addressed by the specialist who has proposed the surgery.
Dr Patrick opines in his report dated 14 August 2019 that the “significant pathology” shown on an MRI scan at the C4/5 and C5/6 levels is “consistent with the type of work he had been carrying out subsequent to the significant workplace injuries of September 2013”. However, Dr Patrick does not explain how the “type of work”, which in the context of that report is the additional strain being placed by Mr Orr upon his neck, has caused the “significant pathology” which he refers to.
There is a considerable difference between Mr Orr experiencing some restrictions and symptoms in other parts of the body, including his neck, as a result of what was a serious injury to the right arm, and the deterioration at a particular level of the cervical spine which requires surgery. This is not properly explained by Dr Patrick.
Dr Darwish had not recommended surgery to the cervical spine at the time Mr Orr saw
Dr Patrick in August 2019. When Mr Orr returns to see Dr Patrick in July 2020 after
Dr Darwish has recommended surgery, Dr Patrick opines that the surgery is reasonable and necessary because it “is consequential on the 24 September 2013 injury”, coming to a head with an incident in about June 2014.However, Dr Patrick again does not explain how what is “consequential” on the right arm injury leads to or materially contributes to the need for a decompression and fusion at the C4/5 level. Dr Patrick merely states that “I strongly believe” that the proposed surgery is reasonable and necessary because of “the nature and conditions of his workplace incident of June 2014 which is consequential upon his work injury of 24 September 2013 to significant extent”.
While I am satisfied that Mr Orr has experienced restrictions and symptoms in his cervical spine as a result of altering his body to undertake work for the respondent following the injury on 24 September 2013, there is a lack of support from Dr Darwish and lack of proper explanation by Dr Patrick as to whether the consequential condition affecting the neck materially contributes to the need for Mr Orr to undergo a decompression and fusion at the C4/5 level.
I am therefore not satisfied that the surgery proposed by Dr Darwish is as a result of the injury sustained by Mr Orr on 24 September 2013.
Whether the applicant sustained an injury to his cervical spine on 13 August 2014
The lay evidence
Mr Orr states that on the morning of 13 August 2014 he was lifting a 70 kg pane of glass with David Potts when he felt excruciating pain down the back of his neck and deep pain in his left shoulder. He states that he told his supervisor, Richard Martin, of what had occurred but was told to “get back to work” and then wet Mr Orr with a hose that Mr Martin was holding.
Mr Orr states that some treatment providers have recorded the injury as occurring in
June 2014, but that Mr Orr had “misremembered” the date.Mr Orr states that he attended Hilltop Surgery that day and told Dr Rahman that he did not want to make a work cover claim because he was “scared shitless” that he would be sacked. He states that Dr Rahman appeared to be unconcerned about the complaints that Mr Orr made of pain in the neck and left shoulder.
In cross examination, Mr Orr said that he asked Dr Rahman not to record an injury to his neck on that day at work because if he made a workers compensation he would have lost his job straight away.
Mr Potts states that he recalls a time in mid-2014 when he and Mr Orr were lifting a 70 kg pane of glass and Mr Orr said: “Jesus, I think I have hurt my neck and shoulder. I am in quite a bit of pain”.
The medical evidence
The record made by Dr Rahman on 13 August 2014 includes:
“was working today
Lifting a 70 KG panel with another person
Felt pain and dropped the panel of glass
Now feels week, tingly and numb”
There is no reference to any pain or symptoms in the neck in what is recorded by
Dr Rahman.I have already referred to the report from Ms Menzies dated 28 August 2019 wherein she records that on 17 October 2014 Mr Orr was lifting a sheet of glass with a colleague in approximately June 2014, and trying not to overload his right arm, when Mr Orr felt a sharp pain in his neck.
I have also referred to the initial report from Dr Darwish dated 6 May 2019 wherein he records that Mr Orr experienced cramps in his neck around June 2014 when lifting a panel of glass weighing 70 kg with a colleague. Dr Darwish concluded in that first report that “the C4/5 disc protrusion is caused by the work related injury as prior to that, he was completely symptomatic”.
Determination
The notes made by Dr Rahman for the consultation on the day that Mr Orr claims to have sustained a frank injury to his neck record that Mr Orr felt pain when lifting a 70 kg glass panel, but there is no reference to Mr Orr’s neck.
I agree with the submission made by Mr Stockley that it is implausible that Dr Rahman would intentionally not record details of an incident that had occurred earlier that same day and which Mr Orr claims to have caused excruciating pain in his neck.
There are no other contemporaneous records or material which assist Mr Orr with this particular claim of injury. I could not locate, nor was I directed to, any other references in the clinical notes from Hilltop Surgery of an injury to the neck on or about 13 August 2014 in the weeks and months which followed.
While I appreciate that Mr Orr might not be certain with dates, he sees Ms Menzies only two months after the alleged incident but places the event four months earlier in June 2014.
Dr Hartnell records in a report dated 15 October 2014 that Mr Orr “had another injury though at work and over the last two months he has really been in trouble with this right forearm and wrist”. Although the reference to the “last two months” does place Mr Orr back to
August 2014, there are not details recorded by Dr Hartnell as to whether this other injury occurred at that time or whether it involved the neck.Mr Potts states that there was an occasion in mid-2014 when he and Mr Orr were lifting a
70 kg and Mr Orr said that he thought he had hurt his neck and shoulder. Mr Potts also states that he observed Mr Orr to be struggling with his right arm.I have accepted that the work which Mr Orr was doing after he sustained injury to his right arm resulted in Mr Orr having symptoms and restrictions in the neck. In my view, the observations made by Mr Potts are more consistent with episodes of pain being experienced by Mr Orr upon his return to work and as he struggled to undertake what were still quite arduous duties as opposed to a specific incident in August 2014 which caused an onset of excruciating pain.
I am not satisfied from the available evidence that Mr Orr did sustain a frank injury to his cervical spine on 13 August 2014 and there will be an award for the respondent on this particular allegation of injury.
Whether the applicant sustained an injury by way of a disease of gradual onset due to the nature of the work he undertook for the respondent from 2010 to 6 January 2016.
The lay evidence
I have already provided a summary of the manual work which Mr Orr undertook both before and after the injury he sustained to his right arm on 24 September 2013. Mr Orr states that prior to that injury he estimates that he was required to lift approximately 300 panes of glass both in and out of the furnace.
Mr Potts states: “Like Nigel, on any given day I was required to lift tonnes of glass in and out of the furnace and/move it around the factory”.
Mr Orr states his neck and left shoulder worsened after the incident he claims to have occurred in August 2014 when lifting a pane of glass. He states that he had no problems with his neck prior to that incident.
The medical evidence
I have already referred to there being only one reference in the material from Hilltop Surgery of Mr Orr having any neck symptoms from his return to work in January 2014 following his first operation until 7 August 2018.
Dr Rahman does record on 7 August 2018: “neck pain for long time”. The referrals from
Dr Mobbs (in September 2018) and to Dr Darwish (in May 2019) state that Mr Orr has “long standing work injury of neck and mid thoracic area”.I also noted that Dr Darwish’s initial conclusion was that Mr Orr had a C4/5 disc protrusion which had been caused by the incident which Mr Orr claims to have occurred in August 2014 (although recorded by Dr Darwish as June 2014).
Dr Darwish is provided with an “updated statement” from Mr Orr to assist with the provision of a report to Mr Orr’s solicitors dated 15 March 2022. The first question asked of Dr Darwish is:
“After considering Nigel's updated statement, along with the history of his employment with Highland's Glass and his duties from 2010 to December 2015 at his relatively young age of 40 when MRI scanned in September 2018, do you agree that the likely explanation for the cause of the conditions identified in the "cervical spine" and "left shoulder" in the MRI scans was due to the nature and conditions of his employment, culminating in frank injury in August 2014?”
Dr Darwish responds:
“It is impossible to answer this question with any certainty. The radiologically demonstrated changes in the cervical spine and left shoulder are most likely degenerative in nature. I believe that the nature of his employment and the injury were a major aggravating factor to him developing the neck and arm pain.”
Dr Darwish is then asked:
“If it is your opinion that the degenerative "cervical and left shoulder" conditions are work caused, was the work performed between 2010 and December 2015 the main contributing factor to the onset of those conditions?”
Dr Darwish responds:
“Again, it is impossible to answer this question with any certainty. As mentioned earlier, the radiologically demonstrated changes in the cervical spine and shoulder are degenerative in nature aggravated by the nature of his employment and the work-related injury.
These changes can result from his normal life/daily activities and it is impossible to attribute them to a five year period. The degenerative process in the cervical spine starts very early in life and progresses slowly. I believe the nature of his employment and the work-related injury are a major aggravating factor to his current condition but I cannot state that it is the only and the main contributing factor.”
Dr Darwish is also asked:
“If it is your opinion that the degenerative conditions of Nigel's cervical spine and left shoulder are each in partly due to:
(a) Nigel compensating and adopting a changed body habitus in order to perform his lifting and carrying activities at work from 23 September 2013 and between surgical procedures to his right forearm up to December 2015 (termination 6 January 2016) and thus consequential to the injury of 23 September 2013 and
(b) The heavy nature and conditions of his work for the entirety of the period worked for the glass factory between 2010 and December 2015.”
Dr Darwish replies:
“As explained earlier, I believe that the radiologically demonstrated changes in the cervical spine and left shoulder are degenerative in nature aggravated by the nature of his employment and heavy lifting of glass between 2010 and 2015 however is not the only cause and not the main cause.”
Dr Patrick only considers whether Mr Orr has sustained an injury to his neck by way of a disease of gradual onset in his fourth and final report dated 10 June 2022. Dr Patrick opines:
“The most likely reason for the onset of degenerative changes at the cervical spine or the aggravation, exacerbation or acceleration of degenerative changes in the cervical spine are directly as a consequence of his workplace injuries including the nature and conditions of his work injuries in reality, since 2010 and culminating in the somewhat delayed MRI cervical spine which has shown very significant pathology at the cervical spine, and it must be noted also thoracic spine. It needs to be noted that Nigel Orr was carrying out very physical work for some time without realising the cervical spinal problem.”
Determination
Mr Hickey submits that the answers given by Dr Darwish in his report dated 15 March 2022 are sufficient to meet the requirements of s 4 (b)(ii) of the 1987 Act whereby a disease injury is established if employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease.
Mr Stockley submits that there is a lack of both lay and medical evidence to support a finding of a disease injury. He submits that there is no evidence from Mr Orr of a progression over time of symptoms in the neck. He submits that there is no insight from any of the expert opinions as to how the type of work that Mr Orr did for the respondent would have caused an injury to his neck.
The application of s 4(b)(ii) of the 1987 Act was well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
I disagree with the submission made by Mr Stockley that Mr Orr does not provide any evidence of the progression of symptoms in the neck while working for the respondent.
Mr Orr states that he had no problems with his neck prior to August 2014 and that his neck and left shoulder worsened after that.Mr Orr worked on for the respondent for about another 18 months after the onset of neck symptoms and that work continued to involve lifting and handling of heavy glass products. The evidence of heavy and arduous work is supported by Mr Potts, and the respondent has not provided any evidence to challenge the evidence from Mr Orr or Mr Potts.
Dr Darwish records that Mr Orr was asymptomatic before the middle of 2014. The clinical notes from Hilltop Surgery which are in evidence date back to December 2001. There is a reference to Mr Orr being referred to X-rays of the cervical, thoracic and lumbar spine on
22 November 2002, but no further action thereafter in regard to this.I therefore accept that Mr Orr had little or no problems with his neck prior to the onset of symptoms in the middle part of 2014.
The ARD does not disclose the ‘updated statement’ referred to by Dr Darwish in his report dated 15 March 2022, although the report from Dr Darwish is provided subsequent to the statement from Mr Orr dated 13 December 2021 which is in evidence in these proceedings. Dr Darwish nonetheless refers to the nature of Mr Orr’s employment and is prepared to opine on whether Mr Orr’s degenerative cervical spine has been caused or aggravated by his employment.
My understanding from the answers given by Dr Darwish in his report dated 15 March 2022 is that he does not consider that Mr Orr’s employment has been the main contributing factor to the development of Mr Orr’s degenerative cervical spine, but that it has been the main contributing factor to the aggravation of that condition or disease.
I come to that conclusion on the basis that Dr Darwish opines that the degenerative nature of the cervical spine “is not the only cause and not the main cause”, but he does opine that “the nature of his employment and the injury were a major aggravating factor to him developing the neck and arm pain”.
In undertaking an “evaluative process” as referred to in AV v AW, I note that there is only a hint of a possible problem with Mr Orr’s cervical spine dating back to 2002. Mr Orr undertook heavy and arduous work with the respondent over a period of six years from 2010 to the end of 2015, notwithstanding that he sustained a serious injury to his right arm about half way through that period of employment.
I accept that the work described by Mr Orr, in particular the lifting and handling of heavy glass products would have placed strain and pressure on his neck and be capable at least of aggravating degenerative changes in his neck.
There is a period of over two and a half years from the time Mr Orr ceases employment with the respondent and when he starts to actively seek treatment for his painful neck. In his statement dated 13 December 2021, Mr Orr states that the doctors at Hilltop Surgery continued to ignore his complaints about his neck and left shoulder. Mr Orr said in cross examination that he eventually decided to “pipe up” about his neck because “enough was enough”.
While it is doubtful that for over two and a half years not one doctor would make a record of neck problems complained of by Mr Orr, Dr Rahman appears to accept that Mr Orr did have long standing problems with his neck in the referrals he writes to Dr Mobbs and Dr Darwish. That adds to my sense of persuasion that Mr Orr was having problems with his neck for several years, including during the latter years of his employment with the respondent.
In terms of the medical evidence, it is my view that Dr Darwish has done his best to address the requirements of ss 4(b)(i) and (ii) of the 1987 Act and is prepared to opine that the nature of Mr Orr’s employment is a major aggravating factor to developing neck pain. Considerable weight has to be given to the opinion of Dr Darwish given his position as Mr Orr’s treating specialist. Furthermore, there has been no contrary medical opinion advanced as to whether Mr Orr satisfies the requirements of s 4 (b)(ii).
I am also mindful of what was said by DP Roche in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
When the opinion which is provided by Dr Darwish in his report dated 15 March 2022, in particular that the “the nature of his employment and the injury were a major aggravating factor to him developing the neck and arm pain”, is then added to the evidence from Mr Orr and Mr Potts regarding the heavy and arduous work undertaken by Mr Orr, I am satisfied that Mr Orr’s employment is the main contributing factor to the aggravation of the degenerative disease of his cervical spine.
I therefore find that Mr Orr satisfies the provisions of s 4 (b)(ii) of the 1987 Act, with a deemed date of injury of 6 January 2016. The date of 6 January 2016 appears to be when
Mr Orr ceased employment with the respondent.
Whether the need for surgery to the cervical spine results from the injury sustained by the applicant on 6 January 2016
Dr Darwish is not asked if the injury to Mr Orr’s neck that is caused by the nature of his employment materially contributes to the need for the surgery that he has proposed. That this same question was not asked of Dr Darwish in regard to the claim for the consequential condition affecting the neck was a major consideration in the conclusion which I reached that the injury sustained by Mr Orr on 24 September 2013 did not materially contribute to the need for that surgery.
However, Dr Darwish identifies from an MRI scan taken in September 2018, and from his clinical judgment on the first occasion that he sees Mr Orr, that a disc protrusion at the C4/5 level is the source of Mr Orr’s neck pain and symptoms.
Although Dr Darwish does not specifically address the proposed surgery in his report dated 15 March 2022, he does confirm that the degeneration of the neck, including at the C4/5 level, has been aggravated by the nature of Mr Orr’s employment, and it is the cervical spine at the C4/5 level which requires surgical repair. In my view that meets the test set out in Murphy that the injury sustained by Mr Orr materially contributes to the need for the surgery proposed by Dr Darwish.
There will be an order that the respondent pay for the C4/5 anterior cervical decompression and fusion proposed by Dr Darwish.
The claim for past s 60 expenses
There will also be an order that the respondent pay the costs of reasonably necessary medical treatment for Mr Orr’s cervical spine as a result of the injury sustained on
6 January 2016.
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