Ottaway v Two Men and a Truck Pty Ltd
[2024] NSWPIC 127
•14 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ottaway v Two Men and a Truck Pty Ltd [2024] NSWPIC 127 |
| APPLICANT: | Andrew Jones Ottaway |
| RESPONDENT: | Two Men and a Truck Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 14 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim by worker for lump sum compensation for injury sustained in the course of employment; employer accepts liability for lumbar spine injury but denies upper limb injury; absence of contemporaneous report of upper limb symptoms in claim form or medical record; Coote v Kelly, Northam v Kelly and Azzopardi v Tasman UEB Industries considered; Held – worker has not established that he suffered an upper limb injury; award for respondent in relation to claims made impairment to the upper limbs. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent in respect of the claim for injury to the bilateral upper limbs (shoulders). 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment of the lumbar spine out of injury on 4 July 2019. 3. That the Medical Assessor is to be provided with the following; (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Applications to Admit Late Documents dated 9 February 2024 and |
STATEMENT OF REASONS
BACKGROUND
By way of an Application to Resolve a Dispute (ARD), Mr Ottoway (the applicant) sought awards for weekly compensation and lump sum compensation (lumbar spine and bilateral shoulders) arising out of workplace injury on 4 July 2019 with the respondent (Two Men and a Truck Pty Ltd).
The matter followed the usual case management pathway. Following conciliation, consent orders were filed finalising the claim relating to weekly payments. The respondent further accepted injury to the lumbar spine but disputes injury to the bilateral upper limbs (shoulders). Offers pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) which excluded upper limb impairment were rejected by the applicant.
Following conciliation impasse, the parties jointly requested I determine the issue of injury/liability of the bilateral upper limbs following which the matter was to be referred to a Medical Assessor.
At conciliation/arbitration the applicant was represented by Mr Carney of counsel instructed by Mr Simpson. The respondent was represented by Mr Barter of counsel instructed by
Ms Jenkins. Ms Coveny represented the insurer.The only issue for my determination is whether the applicant sustained injury to the bilateral shoulders on 4 July 2019.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Applications to Admit Late Documents filed by both the applicant and respondent on 9 February 2024 and 19 February 2024 respectively.
Oral evidence
The applicant was not cross examined.
SUBMISSIONS
Applicant’s submissions
When summarised Mr Carney submitted;
(a) the applicant’s statement identifies that he did much heavy lifting on 4 July 2019 of heavy dollies and engaged in other repetitive movements of the upper limbs. There is no dispute that he sustained injury to the lumbar spine;
(b) injury is supported by general practitioner, Dr Wilton and the applicant underwent diagnostic X-ray of the chest and spine. Whilst there is no contemporaneous complaint of shoulder pain at the time of the injury there were significant symptoms in the thoracic spine;
(c) injury and symptoms to the bilateral shoulders are recorded by Dr Lim approximately two years after the injury;
(d) qualified specialists also refer to bilateral shoulder symptoms and this is consistent with the applicant’s statement, and
(e) It goes without saying the applicant sustained injury to the upper limbs on
4 July 2019 when he was lifting heavy dollies. The fact that he had pain in the upper back is indicative that he had pain in the upper limbs (shoulders).
Respondent’s submissions
When summarised, Mr Barter submitted;
(a) the claim is a frank injury arising out of events on 14 July 2019. There is no consequential injury claim. Whilst the s 78 notice also refers to consequential injury, it has not been pleaded as such and there is no evidence to mount a claim on that basis;
(b) there is no diagnosis in relation to the upper limbs and there is no explanation of a mechanism of injury that could have caused any such diagnosis. The applicant has not established that he suffered injury in the course of employment to the bilateral limbs and even if he did or could, there is no evidence to suggest that his employment was the substantial contributing factor to any injury in the upper limbs;
(c) the evidence relied upon by the applicant is predominantly by Dr Lim, a general practitioner. He has recorded a diffuse symptomatology but no actual diagnosis for the upper limbs;
(d) there are no contemporaneous complaints to the upper limbs at the time of the incident. I was referred to decision of the Azzopardi v Tasman UEB Industries Ltd[1] (Azzopardi) and specifically the discussion relating to the greater the interval between the incident and the first report of symptoms, the more difficult it is to be confident of a causal nexus between any injury and claimed symptoms;
(e) the applicant may be relying on recollection of injury in 2019 but could this be considered reliable given the lapse of time? The applicant in his statement recalls that he hurt his shoulders on 4 July 2019 but the statement was not taken until 26 November 2023, over four years later. On this point, I was referred to the discussion in Coote v Kelly; Northam v Kelly[2] (Coote) where the was some discussion about the fallibility of memory and caution expressed about accepting the evidence of a witness where there was inconsistency with contemporaneous documentary record, even in circumstances, where the evidence is not otherwise impugned. That is, the reliability of the applicant’s evidence in November 2023 is not going to be as sharp as his recall of events at the time of the injury, therefore it is necessary to find some contemporaneous complaint of which there is ‘startlingly little’. Dr Lim (who is not the applicant’s original nominated medical practitioner) first records symptoms in May 2021 with no complaint of injury but rather a complaint of symptoms on examination;
(f) Dr Diebold, the respondent’s qualified specialist, noted in previous multiple reviews, the applicant denied shoulder pain or disability. Further, he could not diagnose or identify a plausible mechanism that would have substantially contributed to any shoulder pathology, and
(g) the nature of the injury may cause diffuse symptoms but absent a diagnosis and absent an explanation from any medical practitioner as to how even a possible diagnosis could result from claimed injury; there must be an Award for the respondent.
[1] (1985) 4 NSWLR 139.
[2] [2016] NSWSC 1447.
Submissions in Reply:
i) the applicant’s medico legal evidence does refer to ‘? soft tissue injury to the bilateral shoulders’;
ii) further the applicant’s physical activities on the day of the injury are such that would have produced injury and symptoms to the shoulders, and
iii) the statement of the applicant, Dr Lim’s notes and the medico legal evidence should comfortably satisfy ss 4 and 9A of the Act.
Evidence
Applicant’s statement
In his statement dated 26 November 2023,[3] the applicant recounted (unedited);
[3] Folio 1-3 ARD.
“10. On 4 July 2019 I sustained injury to my back, ribs, left shoulder, right shoulder, right arm, right hand, left arm, left hand, right leg, right foot, let leg and left foot as a result of bending and lifting ten heavy furniture moving dollies weighing approximately 15-20 kgs each.
11. I recall that on the day I had to lift these items into the back of a truck, transport them to another area, unload them and then turn them upside down before drying and then spray painting a ‘warning sign’ on them. Once they had dried this was followed by lifting and carrying these into a container.
12. During this process I developed increasing back pain which was aggravated more towards the end of work at which point I developed severe low back pain radiating down the back of both legs and subsequently intermittent paraesthesia in the soles of both feet.
13. I also felt pain throughout by thoracic spine and both shoulders and then paraesthesia in the fingers of both hands’….
23. From the day of my accident I have had back, shoulder and chest pains. Prior to this I had no pains.
24. Thoracic spine pain around T7 and pain from T7 to shoulder blades, shoulders and chest.
25. On 30 August 2023, my GP, Dr Wilton wrote a report which clarified that my back, chest and bilateral shoulder injuries were caused by my work accident.
26. I first attended Dr Phillip Bryce and I underwent an X-Ray on my thoracic spine. From this point on there was a big focus on my mid spine being the root cause of my problems. At this time, my shoulders, arms and chest were in pain and were actually numb. I recall mentioning all of this to Dr Wilton and Dr Bryce. I am not sure why these comments were not recorded. Dr Wilton has since clarified his notes by way of his report dated 30 August 2023.
27. I also suffer from other health conditions. These were being investigated around the time of the accident but were not related to my work injuries. I ended being diagnosed with type 2 diabetes.”
Dr Zbigniew Poplawski
Dr Poplawski is the qualified specialist for the applicant. He has reviewed the applicant and reported on 4 March 2020, 23 May 2022 and 5 December 2022.
In the report dated 4 March 2020,[4] Dr Poplawski recorded the injury details as follows;
“On 4 July 2019, Mr Ottaway was required to process a number of dollies weighing 15-20 kg each.
He had to lift these items into the back of a truck, transport them to another area, unload them and then turn them upside down before drying and then spray painting them. Once they had dried this was followed by lifting and carrying these into a container. During this process, he developed increasing back pain with sudden aggravation towards the end of the work, at which point he developed severe low back pain radiating down the back of both legs and subsequent intermittent paraesthesia in the soles of both feet. He also noted pain throughout most of his thoracic spine and in both shoulders and subsequently paraesthesia in the fingers of both hands.”
[4]Folio 45 ARD.
Examination of the upper limbs reported, “no tenderness around either shoulder joint and only mild reduction in range of motion”.
Relevantly in the summary, it was recorded (unedited);
“Mr Ottaway sustained an injury to his lumbar spine while lifting a heavy item at work on 4 July 2019 resulting in compression fractures of the bodies of the L2 and L3 vertebrae. He initially was treated conservatively with bed rest at home but did very badly and ultimately was admitted to the Royal North Shore Hospital on 22 August 2019 where lumbar spine MRI scans revealed the presence of the compression fractures. Subsequently, on 30 August 2019, the interventionist radiologist carried out vertebroplasties with injection of bone cement with considerable improvement of Mr Ottaway's symptoms[5]…
Mr Ottaway has a past history of back pain which was sufficient to stop him working in his usual occupation. He was known to have significant weakness in his thoracic and lumbar vertebrae as a result of multiple haemangioma in some of his vertebral bodies. However, he was able to continue with his normal employment until the lifting episode outlined in the body of my report which resulted in a crush fracture of lumbar vertebrae as outlined there. His employment is therefore a substantial contributing factor to his current condition.”
[5] Folio 49 ARD.
In the report following a telehealth assessment, dated 23 May 2022,[6] Dr Poplawski repeats the history of injury word for word as outlined in paragraph 13 above. In regard to ongoing history, it was recorded (unedited):
“Mr Ottaway also continued to have problems in both shoulders in terms of intermittent pain, particularly with attempts to carry out any activities above shoulder level or with holding even small weights, such as 2 kg or so, with his arms stretched out in front of him.”
[6] Folio 57 ARD.
As regards diagnosis, it was reported:
“Work-related compression fractures of the body of L2 and L3 vertebrae in which pre-existing but previously asymptomatic hemangiomata were present’…
Mr Ottaway is not fit to resume his pre-injury duties as a result of ongoing back pain, which incapacitates him from most physical activities including prolonged standing, bending and lifting.”
As part of this assessment, a whole person impairment was assigned in relation to the lumbar spine only. [7]
[7] Folio 70 ARD.
In his final report dated 5 December 2022, Dr Poplawski again recounts the history repeated above but on this occasion also recorded;
“Mr Ottaway also noted discomfort in both shoulders but disregarded this at the time because of the severity of the symptoms in his back.
Mr Ottaway also complains of nonorganic symptoms in the form of intermittent numbness and tingling in his whole body which is not explained on any anatomical basis. Mr Ottaway also continued to have problems in both shoulders in terms of intermittent pain, particularly if he attempts to carry out any activities above shoulder level or if holding even small weight such as 2 or 3 kg with his arms stretched out in front of him.”[8]
[8] Folio 74 ARD.
At this assessment, Dr Poplawski reassessed whole person impairment by including the bilateral shoulders and diagnosed;
“1. Work-related compression fractures of body of L2 and L3 vertebrae in which pre-existing but previously asymptomatic hemangiomas were present.
2. Soft tissue injuries, (?) subacromial subdeltoid bursitis, both shoulders”[9]
Clinical notes – Dr Wilton[10]
[9] Folio 77 ARD.
[10] Folios 87 and 123 to 288.
In additional to attaching his clinical notes, in a report dated 30 August 2023, Dr Wilton, states:
“in my opinion the injury sustained by this gentleman on 4 July 2019 is the main cause of all of his subsequent symptoms which had not been present until the time of the accident. These symptoms consist of current back, chest, bilateral shoulder pain’. The clinical notes refer to consultations, treatment and management between 20 August 2019 until 2023, where the applicant initially attended upon his practice for a ‘second opinion’ at which time he was diagnosed to have ‘asthma, depression, back pain – acute on chronic, insulin dependent diabetes mellitus and cachexia”[11]
[11] Folio 132 ARD.
My careful review of the notes shows no record of contemporaneous shoulder pain. There is however a reference in a clinical note on 22 March 2023 of ‘fleeting discomfort/pain in his thighs and arms and legs’.[12]
[12] Folio 212.
The balance of the notes contain multiple radiological reports relating to the lumbar and thoracic spine and management plans relating to back pain, asthma and insulin dependent diabetes mellitus, hypertension and depression. Certificates of Capacity refer to a diagnosis of ‘compression fracture to spine while lifting at work’. Centrelink Medical Certificates offer a diagnosis of multiple spinal fractures and insulin dependent diabetes only.
Clinical notes – Workers Doctors
Despite living in Cremorne, the applicant attended this practice located in Parramatta. The first two consultations were via telehealth with Dr Lim. Dr Lim recorded that the applicant suffered a back injury after lifting a number of dollies (approximately 15-20kg at work). As regards symptomatology he reported ‘neck pain and stiffness, bilateral shoulder pain, bilateral arm numbness, chest numbness and pins and needles, lower back pain, groin pain, bilateral knee pain, bilateral lower limb numbness’. [13] He concludes in his clinical note on
4 May 2021 (unedited);[13] Folio 297.
“Prognosis
My patient is currently receiving treatment, and has not stabilised.
Injury related disabilities: Back
My patient requires a course of therapy: Physiotherapist; Neurosurgeon; Psychologist
My patient does not require retraining at this stage.
Conclusion
In my opinion, Mr Andrew John Ottaway has suffered a Back injury with a diagnosis of T7 plate fracture with 20% vertebral height loss, L2 compression fracture with 70% vertebral body height loss, L4/5, L5/S1 disc protrusion (MRI/CT 2019); Chronic pain with psychosocial barriers.. It is likely Mr Ottaway will benefit from a multidisciplinary management program.
In conclusion, Mr Ottaway has sustained injury to his back as a result of a workplace incident. (my emphasis)
Recommendations
Physiotherapist - improve physical function
Psychologist - manage psychological distress
Neurosurgeon - management review pending MRI Specific Issues
He continues to experience pain in his lower back as a result of the workplace incident. His last day of work was the 4/7/2019. He has not had recent imaging, and will require further imaging. X-rays standing thoracic and lumbar, MRI Lumbar spine It is clear after almost 2 years off work, that he will not return to work.”
Certificates of Capacity issued by Workers Doctors dated 7 October 2021,[14]
12 August 2021,[15] 15 July 2021,[16] 17 June 2021,[17] 25 May 2021,[18] and 4 May 2021[19] provide the following responses to fixed questions in the Certificates relevantly (unedited);“Diagnosis of work related injury/disease or motor accident related injury(ies):
‘T7 plate fracture with 20% vertebral height loss, L2 compression fracture with 70% vertebral body height loss, L4/5, L5/S1 disc protrusion (MRI/CT 2019); Chronic pain with psychosocial barriers’.
How is the injury related to work or the motor vehicle accident?
Back injury after lifting a number of dollies (approx 15-20 kgs) at work.”
[14] Folio 355 ARD.
[15] Folio 361 ARD.
[16] Folio 364 ARD.
[17] Folio 367 ARD.
[18] Folio 370 ARD.
[19] Folio 377 ARD.
Respondent’s evidence
Dr Diebold reviewed the applicant on three separate occasions and reported on
23 August 2022, 11 January 2023 and 25 October 2023.As regards the history of injury, Dr Diebold reported on 23 August 2022 [20] (unedited):
“On 4 July 2019, he was working for Two Men and a Truck when he had to shift about ten dollies of 15 kg weight. He had to lift them onto the back of a truck, move them and then unload them, turning them upside down and painting them before carrying them over to yet another container. Towards the end of this activity he developed acute severe lower back pain with radiation to the backs of both legs and pins and needles in the soles of both feet. He also developed thoracic spine pain which radiated to the front of his chest and to his shoulders bilaterally, with some pins and needles in bilateral hands. The pain was so severe that he stopped work and went straight home. He could barely walk.”
[20] Folio 9 Reply.
The diagnosis of workplace injury was recorded as ‘acute compression fractures of L2 and L3 vertebral bodies on 4 July 2019’.
In his report dated 11 January 2023,[21] Dr Diebold repeats the history and with recorded the following in relation to present symptoms (unedited):
“He has mild constant lower back pain. He describes numbness of the anterior thorax and abdomen, as well as the anterior thighs and both legs below the knees. He said this has been present since the injury of July 2019. He also describes significant weakness of his legs bilaterally.
Over the last year or so he describes mild bilateral elbow soreness. On questioning he describes no shoulder soreness, either at the time of initial injury or since.”
[21] Folio 24 Reply.
Dr Diebold did record significant bilateral shoulder stiffness on physical examination although considered it to be due to underlying constitutional glenohumeral osteoarthritis but indicated X-rays were necessary to confirm this opinion.[22]
[22] Folio 29 Reply.
In his final report dated 25 October 2023, Dr Diebold continues[23] (unedited):
“In the bilateral shoulders I cannot identify a diagnosis or condition. The impingement signs are negative. He has limited forward flexion and abduction, but this is limited by back pain, although it is difficult to identify a plausible rationale for this. It is even more difficult to relate any injury or condition of the shoulders to the mechanism of injury of the incident of 4 July 2019.
If it was to be considered that the shoulders were directly injured in the incident of 4 July 2019, then this would need to be due to lifting of the 15 kg dollies on 30 occasions. However, they were only lifted to about waist height, and forced activities in positions of over 70° forward flexion are required to place significant stress on the rotator cuff (please see appendix 1 below). Therefore, I cannot identify a plausible mechanism whereby his work duties on that day, (or prior to that, as duties were not generally physical), have substantially contributed to any shoulder pathology.
I would also note that he has never complained particularly of shoulder pain in the contemporaneous records or in his reviews by me. This has only come up in recent times. His previous complaints referred to back pain only. This raises doubt about any potential chain of causation between the injury of 4 July 2019 and any potential shoulder pathology.
Therefore I am unable to diagnose any shoulder condition, or relate the causation of any possible shoulder condition, to the work-related injury of 4 July 2019. I am unable to identify any rationale whereby it could be a consequential condition to the lower back injury.”
[23] Folio 39 Reply.
APPLICATION OF THE LAW, FINDINGS AND REASONS
Here the applicant maintains he sustained an injury to his bilateral shoulders on 4 July 2019.
Section 4 of the 1987 Act defines ‘injury’ as personal injury arising out of or in the course of employment. Further s 9A of the 1987 Act states that no compensation is payable with respect to any injury (other than disease injury) (not applicable here) unless the employment was the substantial contributing factor to the injury. Section 9A(2) provides examples of the matters to be taken into account when deciding if employment is/was the main contributing factor to any injury sustained.
There is no doubt that the applicant sustained an injury to his lumbar spine on 4 July 2019, however he now also seeks to maintain that he sustained injury to the bilateral shoulders at the same time. Submissions on behalf of the applicant suggest that the applicant’s statement and belated reports to his general practitioners are collectively sufficient to satisfy the definitions of ‘injury’ found in ss 4 and 9A. I disagree. This is because;
(i) initial Certificates of Capacity refer to spine complaints only;
(ii) no contemporaneous note of shoulder pain was made to the original nominated treating doctor, Dr Wilton until 2023 despite multiple presentations;
(iii) the applicant changed nominated treating doctors initially seeing Dr Lim and then his colleagues at Workers Doctors in 2021. There is mention of shoulder pain but the reports provided by Dr Lim only refer to and diagnose workplace injury to the spine, specifically whilst documenting a number of symptoms, Dr Lim concludes ‘the applicant sustained a back injury as a result of the workplace injury’;
(iv) the applicant attests in his statement that he is unsure why Dr Wilton did not record injury to the shoulder, but likewise neither does Dr Lim nor any of the other practitioners at Workers Doctors. Symptoms are recorded but at no stage are they referred to as ‘injuries’ and the symptoms have not been connected to the workplace activities that occurred on 4 July 2019. Certificates of capacity issued by the practice relate to the spine only;
(v) true, Dr Poplawski ultimately on his third assessment diagnoses soft tissue injury (?) subacromial subdeltoid bursitis, both shoulders but does not diagnose it as work related, yet prefaces the back diagnosis as being ‘work related’;
(vi) Dr Poplawski was qualified by the applicant and his reports consistently refer to the back injury, some pain in the shoulders, but despite the careful initial and subsequent history taking, fails to document actual injury to the shoulders or any relationship of the symptoms in the shoulders to the events at work on 4 July 2019;
(vii) Dr Diebold likewise recorded symptoms in the shoulder but again recorded that the applicant did not nominate such complaints at the time of his initial review but did complain of symptoms in subsequent reviews. Dr Diebold concluded there was no evidence to connect current symptoms to either an actual injury and further was uncertain of any diagnosis pending radiological examination, and
(viii) on that point, the applicant maintains he did inform Dr Wilton and others of his shoulder complaints, yet there is no radiological investigation or management plan relating to the shoulders. Whilst the applicant has no real control over his medical management, if there was injury and symptoms arising out of injury, and contemporaneous complaint, I would have expected some form or investigation or treatment plan. This is especially so as I find the clinical notes of Dr Wilton to be quite thorough, taking a history of the applicants past medical conditions, complaints, psychosocial status and ongoing pain, weight loss and depression. There is a host of case law that cautions decision makers about over relying on scant clinical entries, however, I find the notes of Dr Wilton to be quite detailed and his management plans thorough.
I have not ignored the applicant’s statements the nature of the work on 4 July 2019 was such that could have given rise to an injury to the bilateral shoulders. The statement is made four years after the actual injury and despite much intervention from a variety of medical practitioners, no diagnosis or treatment is offered for the shoulders.
Overall, I find that there is a lack of contemporaneous complaints made to third parties, that is, either the insurer, the respondent, treating doctors or specialists of any ‘injury’ to the upper limbs on 4 July 2019. Certainly symptoms were belatedly reported, but at no stage has any general medical practitioner or indeed qualified specialist reported ‘injury’ to the shoulders on 4 July 2019. Certificates of Capacity from two practices refer to the spinal symptoms and back injury as being the only injury on 4 July 2019. There is no evidence that satisfies me that an injury to the shoulders occurred on 4 July 2019 and so no evidence to demonstrate that employment was the ‘substantial contributing factor to the injury’. The complaints of pain have not been disregarded, however pain is not a diagnosis but rather a symptom and in this case, Dr Wilton and others suggest that all of the symptoms/pain emanate from the spinal injury.
The applicant has suffered significantly as a result of his back injury on 4 July 2019 and I don’t for a minute dispute or discount his complaints of widespread pain. The records show he has had much medical intervention and has dramatically altered his lifestyle becoming largely dependent on others. He is unable to return to work which given his educational experience and work history must be soul destroying and to add further insult to injury, his inability to return to work and his ongoing complaints of pain makes him increasingly vulnerable and isolated from mainstream society both financially, physically and emotionally.
Overall, the lack of contemporaneous complaint (Azzopardi and Coote) and the failure of the applicant’s medical evidence (both treating and qualified) to conclusively diagnose and investigate symptoms in the upper limbs and attribute/connect or establish a nexus to the workplace events on 4 July 2019 as required by ss 4 and 9A of the 1987 Act results in a finding in favour of the respondent with respect to injury claimed to the upper limbs.
SUMMARY
For the above reasons, I find the applicant has not established that he has suffered injury to the bilateral upper limbs (shoulders) on 4 July 2019 and the Commission will accordingly make the findings and orders set out on page 1 of the Certificate of Determination.
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