Prasad v Airocle- Ivr Group Ltd
[2021] NSWPIC 126
•19 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Prasad v Airocle- IVR Group Ltd [2021] NSWPIC 126 |
| APPLICANT: | Michael Prasad |
| RESPONDENT: | Airocle- IVR Group Ltd |
| MEMBER: | Mr Michael Perry |
| DATE OF DECISION: | 19 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for section 60 expenses for proposed cervical spine surgery based on alleged personal injury to the applicant’s left shoulder and cervical spine at the same time his left hand was caught in a circular saw machine (the incident) resulting in undisputed significant injuries to that hand requiring multiple surgeries; significant delay reporting of left shoulder/cervical injuries; whether underlying degenerative pathology and cervical spine was aggravated by the incident; Held- finding of injury with respect to the left shoulder and cervical spine; finding proposed surgery reasonably necessary as a result of injury. |
| DETERMINATIONS MADE: | 1. On 9 April 2019, the applicant sustained a personal injury to his left shoulder and neck/cervical spine in the course of his employment with the respondent. 2. The applicant’s employment with the respondent was a substantial contributing factor to the injury to his left shoulder and neck/cervical spine. 3. The proposed surgery on the applicant’s cervical spine, namely, C6/7 cervical foraminotomy, is reasonably necessary as a result of the injury to the applicant’s neck/ cervical spine as referred to in 1 above. 4. The respondent is to pay the reasonable costs of the proposed surgery referred to in 3 above, pursuant to s 60 (5) of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
At 2.20pm on 9 April 2019, Michael Prasad (the applicant) was in the course of his employment with Airocle – IVR Group Ltd (the respondent) when his left hand was caught in the blade of a circular saw (the incident), resulting in undisputed injuries to his left index, middle and little fingers. He alleges he also injured his neck/cervical spine and left shoulder as a result of the incident. The respondent denies there has been a work-related injury to the applicant’s neck/cervical spine and left shoulder.
By Application to Resolve a Dispute dated 5 March 2021 (ARD), the applicant has claimed expenses pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) to cover the cost of surgery proposed by his treating neurosurgeon, Prof Marcus Stoodley, in the nature of C6/7 cervical foraminotomy.
ISSUES FOR DETERMINATION
The parties agree the essential issue is whether the applicant sustained injury, within the meaning of the 1987 Act, to his left shoulder and neck/ cervical spine during the incident. This is part of the more general question of whether the proposed surgery is reasonably necessary as a result of an injury within the meaning of s 60 of the 1987 Act. The respondent confirmed that the “reasonably necessary” limb of that requirement is not in issue.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation and arbitration on 26 April 2021. Mr J McEnany of counsel appeared for the applicant, instructed by P Ferraro, solicitor. Mr R Hanrahan of counsel appeared for the respondent, instructed by Mr D Kim, solicitor. Ms E Ofa- Finau of iCare and Mr S Jones, general manager of the respondent also attended.
By consent, I determined that the description of the respondent’s name in these proceedings should be amended to “Airocle - IVR Group Ltd”.
Both parties also confirmed they did not wish to adduce any oral evidence during the arbitration, including by cross examination.
I am satisfied the parties understand the nature of the application and legal implications of any assertion made in the information supplied. I have used my best endeavours to bring them to a settlement acceptable to each of them. I am satisfied they have had sufficient opportunity to explore settlement and have been unable to resolve the the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Document by the respondent of 20 April 2021, being a letter from the respondent’s solicitor of 15 April 2021, with email of 12 April 2021.
The applicant statements
On 1 October 2020 the applicant stated he was in the course of his duties on 9 April 2019 at about 2pm or 2.30pm, working with a circular saw, and cutting a 3ml aluminium plate. The end piece of that plate got caught in the saw blade “causing my whole hand to go under the blade … left index and middle fingers were transectored by the blade as was the left pinkie, which was broken from the joint …”. He was in extreme pain and focused on his hand, and:
“…I had to pull my arm back from the machine and in so doing jarred my left shoulder and neck … was aware of pain in my left shoulder and neck not long after the injury, but my focus was my hand … given the significant trauma … with the injury … cannot give a specific time, but certainly it was on the same day … thought it was a strain and, given the severity of the injury to my hand, did not pay much attention to it at first. Over the coming weeks, these symptoms became worse and worse …”
The applicant was then taken by ambulance to Campbelltown Hospital, discharged from that hospital that evening, and was asked to go to Fairfield Hospital the next morning. Then “on my third day I underwent hand surgery” by Dr Roland Jiang, hand surgeon.
After discharge from Fairfield Hospital, he came under the care of Dr Mina Iskarous, general practitioner (GP). While it appears that Dr Iskarous did not document complaints of neck pain until September 2019 “my pain in the left shoulder and neck in fact began very soon after the original injury”. Shortly after the incident he began to notice pain and altered sensation travelling from his neck down into his fingers. Dr Iskarous referred him for a cervical spine MRI of the cervical spine which occurred on 8 January 2020 (the MRI). He was then referred to Dr Stoodley who recommended a left C6/7 foraminotomy.
The applicant received hand therapy/physiotherapy in Campbelltown for about four months post injury. The physiotherapist was focused on treating his hand problem. As his hand improved somewhat his focus increasingly shifted to his neck and left shoulder. He continued to be troubled by pain his neck, left shoulder and arm. He also stated:
“… I had not experienced any prior left shoulder or neck complaint … left shoulder and cervical spine complaints were not documented early on in my treatment because it was a mild issue at first. As the pain worsened over the ….weeks and months, I resolved to get medical attention … shoulder and neck were jarred with significant force during the incident...”
The applicant’s 13 November 2020 statement was made in the context of him seeing the CCTV footage of 9 April 2019 between 2.20pm and 2.22pm:
“The CCTV shows me pulling the circular saw down using my right arm to cut the plate, as I did so, the plate dislodged hitting my left little finger causing my left index and middle finger to go under the saw. When the saw struck my left hand I jolted backwards and as a result I pulled my left arm to prevent further damage. I was unable to move from the saw as my left index and middle finger were under the blade and stuck. I shouted loudly “Please, help, help” hoping foreman Matthew Brown would come to my aid. He did so, turned off the power to the saw and then released my hand from the saw with the manual clamp.”
The closed-circuit television (CCTV) footage at respondent’s premises 2.20pm 9 April 2019
This footage was part of the evidence in the proceedings and each party had access to, and made submissions in relation to, it during the arbitration. I was also able to follow those submissions with access to the same footage.
Dr Roland Jiang, hand specialist
Dr Jiang initially saw the applicant on or about the day of the incident and performed the first surgical procedure on 11 April 2019. In his initial report on that day, he described a significant “long term laceration” over the applicant’s left index finger, including a 30% laceration to his extensor tendon which was repaired. Dr Jiang also described “quite a nasty injury” to the middle finger, with a “50% bone loss of his base, the general matrix laceration as well”. He also described a “very comminuted distal phalangeal fracture” which required a K-wire placement for stabilisation. There was also a “little finger P1 proximal phalangeal fracture” which also required surgery “with two crossed K-wires … for internal fixation …”.
Dr Jiang reviewed the applicant on about 10 occasions then up until at least 28 October 2019 – at which stage he noted that it had then come to his attention that “a recent MRI” showed the possibility of a C6/7 “disc issue”. He thought this needed “neurosurgical input” and suggested referral to Dr Renata Bazina, neurosurgeon, on the basis that she might be able to deal with the “disc issue” and what Dr Jiang described as “chronic pain”. This appears to be the first time Dr Jiang has noted anything in relation to the applicant’s cervical spine.
The other reports of Dr Jiang’s meetings with the applicant between April and October of 2019 focus only on hand and finger problems, except that on 16 September 2019, he reported the applicant “has changed hand therapists … seeing them now for 3 weeks and … middle and index finger pain has resolved completely … pain is now limited to his little finger … I note … he has left shoulder pain and he is due for a steroid injection in 4 days time …”.
Report of Mark Benad, psychologist, 31 July 2019
Mr Benad noted the applicant attended an initial consultation on 31 July 2019, referred by
Dr Iskarous “for assistance with psychological disturbance associated with a work injury and related consequences”. Mr Benad also took a detailed history of the three surgeries the applicant had undergone on his left hand to that time; on 11 April 2019, 3 June 2019 and 11 June 2019. He also noted the applicant being off work for three months, and was currently working two days per week full hours but engaging in light duties, including machine operating. He was still consuming “Panadeine Extra …”. Mr Benad took a history of “persisting high levels of pain to the left pinkie … complete numbness to his two injured fingers … top of the hand aches after his work efforts … some radiation of symptoms up his left arm”.
He also noted the applicant was waking at night with pain and experiencing distressing nightmares of the accident, secondary insomnia post-nightmare, fatigue, lethargy on rising, and episodes of depressed mood. He opined that the applicant was suffering “psychological disturbance directly attributable to his …workplace injury and related consequences”.
Ms Kara Simmons, occupational therapist/hand therapist report 10 September 2019
Ms Simmons noted that “we have only seen Michael in Bowral for the last 3 weeks … reports he has had shoulder pain since the original injury and in the last 3 days he has had significant pain from the neck to the hand and ulnar nerve irritation”. Ms Simmons tried to “address the ulnar nerve with taping, compression and splinting” and noted that the applicant required an assessment of his cervical/proximal shoulder region by a specialised physiotherapist to address the pathology/compression of his nerves. She thought that this “could have occurred through ‘dropping’ of the left shoulder due to compensatory techniques to manage his pain and restriction in his range of movement after his shoulder injury”. She requested urgent approval of such assessment “and ongoing treatment to help resolve this issue promptly”.
St Luke the Physician Medical Centre clinical notes (St Luke) including Dr Mina Iskarous
The first notes from St Luke or Dr Iskarous, on 15 April 2019, record “Workers Compensation” and prescriptions of Endone and Panadeine. On 30 April 2019, another GP at St Luke saw the applicant, noting he still had pain over the surgical site. On 7 May 2019, Dr Iskarous saw the applicant and again noted “Workers Compensation … PTSD … letter to Mark Benad”. She made similar entries on 16 May 2019 and 6 June 2019. On 27 June 2019 she noted complaints of symptoms in the applicant’s fingers. There were two further visits in July 2019 where Dr Iskarous made similar notations. Then on 2 August 2019, she noted “golfer’s elbow … Endone … ceased … Panadeine Extra … ceased”.
On 11 August 2019, Dr Iskarous recorded “examination: Musculo-skeletal – affected joints … left shoulder tender. Movement restricted … left elbow tender. Movement restricted … left elbow pain … left shoulder pain …” Dr Iskarous noted she queried a supraspinatus tendonitis and/or tennis elbow and/or golfer’s elbow condition. She saw the applicant again on 15 August 2019 when no relevant note appears. On 21 August 2019, she noted results of an ultrasound of the applicant’s “forearm or elbow given to patient ... golfer’s elbow, subacromial bursitis”
On 19 September 2019, Dr Iskarous noted “Off work. Sever(e) … neck and shoulder pain …” On 9 October 2019, she arranged for a cervical spine CT and requested an MRI scan of the applicant’s cervical spine and noting “disc bulge? Nerve compression?”.
Professor Marcus Stoodley, neurosurgeon
Dr Stoodley reported to Dr Iskarous on 17 January 2020. He noted the applicant’s “past medical history of coronary artery disease, hypercholesterolaemia and (PTSD)”. Dr Stoodley took “a history of left upper limb pain since a work injury in April 2019”. He took a history of the incident that was reasonably consistent with the applicant’s statement, then noted that:
“over the following few weeks …began to notice pain extending from the lateral cervical region … into the left shoulder dorsal arm and forearm and paraesthesia of the middle and index fingers … symptoms triggered by cervical flexion movements as with vacuuming or washing the dishes …”
He noted the recent left elbow ultrasound showing a common extensor and supraspinatus tendinosis and subacromial bursitis, and the MRI demonstrating C6/7 disc osteophyte complex with left foraminal stenosis causing impingement of the exiting left C7 nerve root. He opined that the symptoms were consistent with left C7 radiculopathy secondary to foraminal nerve root compression “which has likely been aggravated by his injury in April 2019”. He discussed the applicant’s future treatment options, including a C6/7 foraminotomy to decompress the C7 nerve root. Dr Stoodley thought that surgery was reasonable to consider. After such discussion, the applicant indicated that he would like to proceed with it.
The next report from Dr Stoodley, dated 17 December 2020, is addressed to the applicant’s solicitors. He noted he had viewed the CCTV footage and stated “the underlying pathology is a C6/7 disc osteophyte complex” and that although that “will not have been caused by the incident demonstrated on the …footage, I remain of the view that the incident is likely to have aggravated the nerve root irritation and/or compression caused by the disc osteophyte …”.
Dr Anil Nair, forensic reports 16 July 2020 and 16 December 2020
Dr Nair saw the applicant on 16 July 2020 and took a history of the incident which was not inconsistent with the history in the applicant’s statement – and including reference to “a hyperextension moment applied to both the cervical spine and left shoulder region”. He noted that about “8 weeks after the … accident he returned to work …noticed significant pain in … cervical spine, left trapezial region and left shoulder”. He also noted the applicant had denied any symptoms involving his neck, left shoulder or left upper extremity before the incident.
After considering that history, his clinical examination and radiological imaging, including the MRI, he concluded that the applicant had “permanent and anatomical aggravation to both the cervical spine and left shoulder regions as a consequence of the subject accident on 9 April 2019”. As to diagnosis, Dr Nair opined that the applicant had clinical and radiological evidence of a permanent and anatomical aggravation to underlying cervical spondylosis – and clinical evidence of an injury to his left shoulder rotator cuff musculature. He suggested that an MRI of the applicant’s left shoulder be organised.
He opined that “decompression of the left C7 nerve is both reasonable and necessary”. He was provided with the opportunity of considering the report of Dr James Powell, orthopaedic surgeon, obtained by the respondent’s solicitors. He noted he did not agree with Dr Powell “that Mr Prasad has not suffered an injury to his left shoulder” – stating “he was readily utilising both his upper extremities (prior to the accident) … is now unable to utilise his left upper extremity for even the most rudimentary of tasks … he has significant pain and stiffness in the left shoulder …”. Dr Nair also stated that he agreed with Dr Stoodley. He stated he did not believe that the applicant displayed or illustrated “chronic pain behaviours” and that it was his opinion that the applicant’s symptoms were “due to anatomical changes which have a clear and unambiguous nexus to the subject accident on 9 April 2019”.
Dr Nair later viewed the CCTV footage, and reported this on 16 December 2020:
“… after scrutiny of CCTV footage … my view remains unchanged … at about the 19 second mark a hyperextension moment being conferred to Mr Prasad’s axial skeleton. This is consistent with a permanent and anatomical aggravation resulting in the requirement for surgery to his cervical spine … I have also scrutinised the report of
Mr Michael Prasad dated 13 November 2020. My opinion remains unchanged.”
Dr James Powell, orthopaedic surgeon forensic report 2 April 2020
Dr Powell saw the applicant on 20 March 2020. He took this history of the incident :
“Working on a docking saw, cutting aluminium angled material… clamp to hold down the waist section… cutting was too small… needed to stabilise the piece with his left hand was pulled into the saw blade… struck the ring and small fingers on part of the machine (after his arm was caught under components of the machine pulling him forward and he tried to withdraw backwards but his hand became stuck)…”
Dr Powell noted the history of treatment of the applicant’s hand and fingers and subsequent hand therapy. He then took a history that “around 3 weeks after the injury incident and repair … started to develop pain about the right [sic- read as ‘left’] shoulder region which radiated down into the arm and became steadily worse and has remained a dominant feature …”.
Dr Powell then noted the applicant “had no previous injuries nor symptoms in the left upper limb”. After taking into account the history, results of his clinical examination and radiological investigations, he found the applicant had some residual hand stiffness and sensory alteration. He also found the applicant’s “course was complicated by the development of pain some 3 weeks afterwards, commencing from the shoulder downwards, and this has been a dominant feature since that time”. Dr Powell also noted the applicant had been found on investigations to have multi level cervical spondylosis in the mid to lower cervical spine “from which he had no previous symptoms. He also noted the applicant was then “under chronic pain management”.
Dr Powell thought that the applicant’s “subsequent clinical course and current presentation suggests … he has developed some form of chronic pain disorder”. However, he also noted that the applicant “does not show the classical markers of complex regional pain syndrome (CRPS), but that the presentation fitted “what used to be called ‘Hand-Shoulder Syndrome’ which was later felt to be part of a chronic pain disorder”.
Dr Powell opined that the applicant did not have any primary injury at the left shoulder arising from the incident nor subsequently.
In relation to the cervical spine, Dr Powell noted that the applicant had been found to have advanced cervical spondylosis in the mid to lower cervical spine with a tendency to foraminal stenosis. He also noted that the applicant’s description of symptoms in the left upper limb to Dr Stoodley “suggest a radicular origin of these symptoms from lower cervical roots of the brachial plexus, although he did not give this description today”. Dr Powell stated that the applicant had not suffered any primary injury in the neck region and his description of the initial incident did not suggest that he was exposed to traction to the brachial plexus.
In relation to the left shoulder condition, Dr Powell stated that it was not entirely clear as to when the applicant’s pain symptoms:
“more proximally commenced … being various estimates of the timing of onset of symptoms by different observers … however currently display some form of chronic pain disorder affecting … left upper limb from the neck region down to the hand …chronic unrelenting and severe pain and shoulder stiffness being the most prominent feature …”
Dr Powell stated that the chronic pain disorder or syndrome “has arisen as a complication of Mr Prasad’s hand injury”.
In answer to a question about whether the employment was a substantial contributing factor “to the claimed condition”, Dr Powell said the answer depended on what the “claimed condition” is, and noted that the image did identify multi-level cervical spondylosis with a tendency to stenosis “which is very evident at the left C5/6 and C6/7 discs as well as other portions of the cervical region”. He said this condition had been developing for years before the incident without the applicant’s knowledge of any symptoms. He said there were no ways of identifying or imaging a patient’s pain syndrome, how severe they may be or where they may be felt or what may be contributing to them. He accepted that the description from the applicant to Dr Stoodley does suggest a radicular component to a distribution of his pain syndrome “but patients are not otherwise consistent in how they describe their symptoms and human memory, particularly under the influence of chronic pain, is notoriously poor”. He repeated that “chronic pain management is a very difficult discipline”.
Dr Powell stated that Dr Stoodley’s indication “that decompression … in the lower cervical region may assist or … remove any contributing component from the stenotic disease …”:
“… does not imply … any primary injury in the neck region … nor that the … spondylosis has necessarily been aggravated by the incident (which as far as I can determine has not) but rather that directing surgical attention to the stenotic component of the lower cervical region, based upon Mr Prasad’s history as given to different practitioners who have assessed him, may be a source contributing to his chronic pain disorder and can be addressed early in order to give the other modalities of chronic pain management more potential to succeed … although the surgery is directed at the cervical spine … not for injury nor is it for aggravation of injury, but is try (sic) and manage a pain condition that has arisen from Mr Prasad’s more peripheral injury, as detailed above … whether it succeeds or not, only time will determine”.
Submissions for the applicant
It is hard to conceive after looking at the video that the applicant’s left shoulder and neck would not have been injured. One can see the machine pulling and kicking, and then transferring an amount of force into the applicant’s left shoulder. The machine catches on the piece of metal and is pulled towards the applicant. When focusing on the images of the applicant’s left arm, one can see a jolt, with the arm being pulled forward. Children in a playground know “the knee bone is connected to the leg bone”.
The applicant’s supplementary statement is consistent with what appears in the film; with him describing a pulling forward of his left arm. Another account of the incident appears in a report (31 July 2019) from Mark Benad psychologist. The history taken by Mr Benad is consistent with the applicant’s supplementary statement, and the CCTV footage. The reports of Drs Nair and Stoodley also speak of “wrenching” or “traction”. The applicant’s evidence is that his shoulder was hurting from soon after the incident on 9 April 2019.
Given the severity of the injury to the applicant’s fingers, which were caught in the machine, it is unsurprising that he was not fully aware of the extent of injury to other parts of his left upper limb and the adjacent neck, nor is it surprising that there was some delay in him reporting those symptoms in those circumstances. The applicant also needed to have his arm put into a sling, and was advised to and did hold his arm in a protected position for some time.
The 10 September 2019 report of Ms Simmons, five months post-injury, notes the applicant had been experiencing shoulder pain since the injury; and that he had been experiencing significant pain in the neck to the hand and ulnar nerve irritation. This is perhaps the first written account of the neck problem. Ms Simmons expressed concern about the applicant’s neck and shoulder condition to the point where she thought she should start treatment of it even before approval was forthcoming from the Insurer.
Then, only six days later, a report from Dr Jiang dated 16 September 2019, only makes passing reference to the applicant’s left shoulder pain, in circumstances where Ms Simmons had much concern about not only the left shoulder but also the neck. This shows how caution should be exercised when utilising notes of busy medical treating practitioners. Also, where the applicant has given a statement dealing with an explanation for his delay in reporting an injury, and including setting out the circumstances and history of the onset of the injury, the respondent ought not, in these circumstances, attempt to impeach the applicant’s evidence by suggesting that he has somehow “made up” his evidence about the explanation for that delay and the details of the onset of the injury and its symptoms. Reliance is made in that regard on the decision in Octavian v Crucienu & Vix Technology Pty Ltd [2019] NSWWCC235 at [67].
Dr Nair considered the MRI, and after taking into account the history and investigations, opines there was a hyper-extension injury to the left shoulder resulting in a permanent anatomical aggravation of the applicant’s cervical spine and left shoulder, with the underlying condition being spondylosis. Dr Nair also considers, and accepts, the reasonableness of the applicant not being fully aware, for some time, of the full extent of the injuries to his left shoulder and cervical spine on 9 April 2019. Dr Nair also has the benefit of viewing the video, and confirms his view about the causal relationship between the incident and the injury to the cervical spine.
The case is put on the basis of s 4(a) of the 1987 Act. There is no suggestion of gradualness. Even though the injury is to some extent an aggravation of an underlying condition, this can still be covered by s 4 (a) as a frank injury (Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski)).
The reports of Prof Stoodley add up to the applicant suffering an aggravation of an underlying degenerative condition by way of a “pulling” or “traction” type event during the incident on 9 April 2019. There are two specialists who have opined that there has been this permanent aggravation of an underlying condition which has resulted in the need for surgery. There is no evidence of any pre-existing problem in the applicant’s neck or cervical spine. That does not mean that the employment or incident has caused the underlying pathology. But an ongoing aggravation is sufficient to succeed. This is the Dimovski type aggravation.
Dr Powell’s opinion is that there is a chronic pain syndrome. He assumes that the applicant had no pain in or about his neck for a few weeks or months after the incident. The applicant cavils with that history and says he did have such pain or symptoms but “had more pressing concerns with his lopped off fingers”. If one accepts his evidence that he did have shoulder or neck pain from the beginning, contrary to the history assumed by Dr Powell, then
Dr Powell’s opinion is tenuous at best. There is no other doctor who suggests there is a chronic pain syndrome. The rest of the evidence makes it clear that there is at least significant pathology in the cervical spine. Dr Powell also concedes there is significant pathology in the cervical spine. He also suggests surgery could assist in resolving the applicant’s symptoms – although these are symptoms relating to a chronic pain disorder that has not been caused by the employment.
Submissions for the respondent
The mechanism of the injury complained of by the applicant is unclear. While it has been submitted for the applicant that the injury was by way of aggravation of degenerative changes in his neck, it is necessary for him to establish that the employment was a substantial contributing factor to any injury to his cervical spine. The evidence does not establish that. The applicant was alone at the time of the injury, he may have been engaged in an activity for his own purposes at the time, and the facts should be looked at in that context because “the injury could have occurred at home” and “we are left to speculate” about what happened: although respondent is not running a case that the applicant was acting outside the course of his employment. It is a causation argument.
Dr Powell’s opinion is correct – that there was no primary injury to the cervical spine, and the incident did not give rise to any traction injury to the brachial plexus or cervical spine.
This is consistent with the video which does not adequately show force applied to the applicant’s left arm that was sufficient to be satisfied that an injury could have occurred to his neck or left shoulder. The “traction” or “jerking” is “fairly subtle… at least as far as the left arm is concerned”. The “kick of the machine” is a pushing forward rather than pulling back.
Prof Stoodley reported that the applicant told him he had symptoms in his neck, then extending into the shoulder- in the “few weeks” following the incident. But the applicant saw his GP, Dr Iskarous on 15 April 2019, and there is no detail about any such symptoms being reported then. The next time he went to the GP practice he saw Dr Chan and again was nothing specific recorded about any injury to the left arm. Similarly, the visits to Dr Iskarous in June and July 2019 essentially related to complaints of numbness and/or infection in the fingers.
The first complaint of pain involving the upper left arm was on 11 August 2019 – but this only relevantly related not to the neck/cervical spine but to the left shoulder or elbow, without any description of how or by way of what activities those symptoms came about. A similar recording appears when the applicant saw Dr Iskarous on 21 August 2019. It was not until October 2019 that a record appears about pain in the applicant’s neck. So the GP’s notes disclose the “opposite” history to what Prof Stoodley understood, with symptoms not starting in the neck, then extending into the shoulder; rather, they seem to start in the fingers, then the neck until six months after the incident.
On two occasions in April, and July 2020, the GP notes record a lump on the right side of the applicant’s neck which may have increased in size with eating. This accentuates the concern about there being no clear explanation by the applicant’s experts about the mechanics of the injury. There is simply an assumption of a traction injury. The “videos have been shown to the applicant’s doctors, but they don’t really justify or explain in any satisfactory way, to a layman listening, as to how it comes about that the injuries to the fingers now surgery to the neck”. The CCTV only shows a subtle movement.
The applicant needs to prove that employment was a substantial contributing factor to the injury and has not proved that. The GP notes referring to a lump in the neck, the substantial delay in the applicant reporting symptoms in the shoulder and or neck, and the difficulties with the history about the onset of pain in the neck show this failure. Also, the MRI seems to show degenerative pathology on the left side of the applicant’s neck. This needed to have been explained and/or reconciled by the applicant’s experts.
Dr Powell provides a clear and understandable explanation of the nature of the pathology. He notes the onset of the neck pain was “some weeks or months” after the incident. The circumstances of the onset of the pain are not described by the applicant in his history. Dr Powell clearly opines that there was no primary injury to either the left shoulder or the neck region, and that on his recording of the applicant’s description of the incident, there was no traction injury to the neck or cervical spine. He finds the applicant had pre-existing advanced cervical spondylosis. He says a complex regional pain syndrome arose and any symptoms are simply a manifestation of the pre-existing degenerative changes. In the circumstances, including the delay in and inconsistent histories about, the recording of neck symptoms, it is likely that any symptoms the applicant does have in or about his neck relate to these underlying degenerative changes, without any substantial contribution from the employment.
It makes no difference that Dr Powell did not see the CCTV. The applicant’s experts who did see it thereafter provided reports that simply adhered to their earlier opinions on causation. They did not provide an adequate explanation as to the mechanics of any injury. They did not even go to the detail provided by applicant’s counsel when argued that children know the “knee bone is connected to the leg bone”. But it is not necessary for Dr Powell to set up an adequate explanation as to how the injury came about. That is the applicant’s onus.
Submissions for applicant in reply
The respondent’s submission about the applicant’s doctors not providing adequate detail of the mechanics of injury is not a fair reading of their reports. Dr Nair noted the video, at about the 19 second mark, showed a hyperextension movement to the applicant skeleton.
The right sided lump on the applicant’s neck is a red herring. It has never been suggested in the applicant’s case that the left-sided neck pain included reference to lymph nodes or lumps. There had never been any symptoms in his neck or arm before the incident; then he told Ms Simmons, from early September 2019, that he had been experiencing shoulder pain since the incident and then significant pain from his neck to his hand in the previous few days.
FINDINGS AND REASONS
I am actually persuaded that the applicant has proved that he did sustain personal injury to his left shoulder and neck/cervical spine as a result of and during the incident on 9 April 2019. I am also actually persuaded that the applicant has proved that the surgery proposed is reasonably necessary as a result of the injury at that time. I am also actually persuaded that the applicant’s employment with the respondent was a substantial contributing factor to the injury to his left shoulder and neck/cervical spine. My reasons follow.
Contrary to the submission for the respondent, does not matter that the applicant was alone at the time of the injury; if only because the parties in the commission have had the benefit of seeing, in real-time, the CCTV footage of what occurred. One can also see the person who must’ve been the applicant’s foreman, Matthew Brown, come to his aid after the applicant stated that he said “please, help, help”. One is not able to hear what was said from the CCTV footage. But I saw images which were perfectly consistent with the applicant stating that when his fingers were caught in the blade and became stark, he could not remove the circular saw from his finger. One can see from the footage that he was turning around and trying to gain attention. I disagree with the submission that “we are left to speculate” about what happened and that “the injury could have occurred at home” is relevant to causation of the injury. I also do not agree with the submission that the mechanism of the injury complained of by the applicant is unclear. Again, the parties and the Commission have the unusual benefit of CCTV footage – as well as the usual evidence lay and expert evidence.
After having the benefit of viewing the CCTV footage both independently, and in the context of each counsel making their submissions about how to interpret it, I prefer the submissions for the applicant in this respect. The respondent says that the footage does not show sufficient force applied to the applicant’s left arm to be satisfied that an injury could have occurred to his neck or left shoulder. I disagree with this submission.
From a lay point of view I saw the body of the machine, being held by the applicant’s right hand, forcefully kicking back towards him- and forcing him back as a result. At the same time, his outstretched left hand was placed on a work platform beside and upon which the machine was standing. I saw the applicant’s body forced back, but his left arm jerking forward, or at least staying stationary with the rest of his body jerking back. This makes sense because the fingers of his left hand became stuck under the blade of the circular saw.
The images show a jerking significant force being applied to his left arm on my viewing, consistent with the applicant’s submission. There is nothing “subtle” about it. It is clear. More importantly, both Dr Nair and Prof Stoodley have seen the footage. Dr Nair stated that after “scrutiny of the incident reveals… a hyperextension moment being conferred to… Axial skeleton… consistent with a permanent and anatomical aggravation resulting in the requirement for surgery to his cervical spine”. Contrary to the submissions for the respondent, this is a clear, albeit succinct, opinion which does explain the mechanism of injury. Prof Stoodley’s opinion is perhaps not as clear in terms of fully exposing the mechanism of injury in any detail. But it is clear that he has viewed the CCTV footage and “remains of the view that the incident is likely to have aggravated the nerve root irritation and/or compression caused by the disk/osteophyte complex”.
There is no report from Dr Powell to show he viewed the CCTV. This places his opinion at a significant disadvantage compared to those of Drs Nair and Stoodley. The respondent submits this should make no difference and that after viewing the CCTV, all the applicant’s experts did was to simply adhere to their earlier opinions on causation. I do not accept that submission. This submission may be open, to some extent, in relation to the opinion of Prof Stoodley, because he does not expressly deal in any detail of what he saw on CCTV. On the other hand, he did go into the detail of conceding, after seeing the CCTV, that the underlying pathology was not caused by the incident – but still remained of the view that the incident aggravated that pathology. However, Dr Nair clearly did more than simply adhered to his earlier opinion, as I have noted in the preceding paragraph.
This is an important matter because Dr Powell has essentially accepted, that the MRI did identify multi-level cervical spondylosis with a tendency to stenosis “which is very evident at the left C5/6 and C6/7 discs”. Therefore, there is not much, if any, difference between the expert evidence put forward by each party about the pathology in the applicant’s cervical spine. It is also clear that the applicant had not experienced any symptoms in either his cervical spine or left shoulder regions prior to the incident. There is no evidence otherwise and Dr Powell does not question the applicant’s history in that respect.
Dr Powell then also states that the decompression proposed by Dr Stoodley “may assist or… remove any contributing component from the stenotic disease…” but this “does not imply… there has been any primary injury to the neck region nor that the cervical spondylosis has necessarily been aggravated by the incident”. Clearly enough, part of the reason Dr Powell is not prepared to find that the incident “necessarily” aggravated the underlying pathology is because he believes he has not seen sufficient evidence to allow him to so determine. And he stated that the applicant’s “description the initial incident does not suggest that he was exposed to traction to the brachial plexus”.
One is then left to wonder whether or not Dr Powell’s opinion would change if he saw the CCTV. I cannot speculate about that. However, this is a significant reason why I prefer the opinions of Drs Nair and Stoodley. The history Dr Powell took was not essentially inconsistent with the CCTV footage and his statement; because Dr Powell does note that “his left hand was pulled into the saw blade”. However, Dr Powell’s history is left at that and is not explored further in terms of whether or not such pulling had an immediate effect on the applicant’s arm.
Another reason Dr Powell took into account in not agreeing that the incident aggravated the underlying pathology is the timing of the onset of the applicant’s shoulder and neck symptoms. He assumes that the history was “of onset of more proximal pain initially around the shoulder regions some weeks to months after the” incident. However, the applicant has stated that he was aware of pain in his left shoulder and neck “not long after the injury, but my focus was my hand”. He was unable to give a specific time but “it was certainly on the same day… thought it was a strain… given the severity of the injury to my hand did not pay much attention to it at first. Over the coming weeks, the symptoms became worse and worse”.
I accept the applicant’s evidence in this respect. And in all respects, I believe he has done his best to tell the truth. Apart from some inconsistencies in the histories about timing of onset of the neck and shoulder symptoms recorded by various medical reporters, there is no evidence to suggest he has done otherwise. Dr Powell appears to accept him as a medical witness, or at the very least, does not suggest any doubt in that respect. There is nothing in his history to suggest he was anything other than an honest worker who suffered no significant impediment to his working capacity. I believe those “inconsistencies” are explicable on the basis of the applicant’s most understandable early focus on his hand injuries. They were the obvious, immediate, and painful injuries, and they resulted in early treatment, including three surgical operations, and hand therapy over a number of weeks.
Dr Powell does state that the applicant’s description of left upper limb symptoms to
Prof Stoodley suggests a radicular origin of those symptoms from lower cervical roots of the brachial plexus – although “he did not give this description today”. It is not entirely clear what particular description Dr Powell is referring to here, or why it precisely differed from
Prof Stoodley’s record, although I infer it may be because of Dr Powell’s preference for the chronic pain disorder diagnosis is the explanation for such symptoms. Also, at page 7, final paragraph of his report, Dr Powell then immediately goes on to state “he has not suffered any primary injury in the neck region… description of the initial incident does not suggest that he was exposed to traction to the brachial plexus”. For reasons dealt with above, Dr Powell’s opinion in this respect is disadvantaged by him not seen the CCTV. Dr Stoodley’s opinion is also more consistent with the opinion of Dr Nair. For all these reasons, I prefer the opinion of Prof Stoodley over that of Dr Powell regarding the description of left upper limb symptoms suggesting a radicular origin.Dr Powell has opined that the applicant has a chronic pain disorder. It has been submitted for the applicant no other doctor says this. But Dr Powell did have a basis to come to such view; namely, the applicant did have to see Mr Benad, the psychologist, in late July 2019, and there is little doubt that the applicant was, as Mr Benad stated “suffering psychological disturbance directly attributable to his… injury and related consequences”. The applicant had also been referred to Dr Sundaraj, a pain specialist. However, three reports from him are in evidence and there is no, at least clear, reference to a chronic pain disorder. The main point to come from those reports is Dr Sunderaj’s agreement with the proposed surgery and requests for the respondent’s insurer to urgently approve it. Dr Nair also disagreed that the applicant displayed “chronic pain behaviours”.
For the reasons given above, I find that the applicant did suffer injury to his left shoulder and neck/cervical spine during the incident on 9 April 2019 thereby aggravating the underlying cervical spine pathology. I prefer the evidence of Drs Nair and Stoodley to Dr Powell’s evidence for the reasons given above. I agree with the submission for the applicant that the relevant principle in Dimovski is applicable in this case and this a frank injury pursuant to s 4(a) of the 1987 Act. In my view, it also follows from the reasoning above that the employment was a substantial contributing factor to the injury I have found.
SUMMARY
On 9 April 2019, the applicant sustained a personal injury to his left shoulder and neck/cervical spine in the course of his employment with the respondent.
The applicant’s employment with the respondent was a substantial contributing factor to the injury to his left shoulder and neck/cervical spine.
The proposed surgery on the applicant cervical spine is reasonably necessary as a result of the injury to his left shoulder and neck/cervical spine.
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