Proops v MSS Security Pty Limited
[2023] NSWPIC 384
•2 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
Citation: | Proops v MSS Security Pty Limited [2023] NSWPIC 384 | |
| APPLICANT: | Aaron Proops | |
| MSS Security Pty Limited | |
| Member: | Diana Benk | |
| DATE OF DECISION: | 2 August 2023 | |
| CATCHWORDS: | WORKERS COMPENSATION - Claims for permanent impairment compensation; accepted claim for injury to upper limbs and scarring; disputed claim for consequential condition of cervical spine as a result of upper limb injuries; consideration of Kooragang v Bates; Held – the applicant has not satisfied the onus of establishing consequential condition of his cervical spine as a result of injury to his upper limbs; remitted to President for referral to Medical Assessor in relation to upper limb injuries and scarring only. | |
| determinations made: | The Commission determines: 1. Award for the respondent in respect of the claim for injury to the cervical spine. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder) and scarring arising out of injury on 5 May 2015. 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 15 June 2023 and 29 June 2023 and attachments. | |
STATEMENT OF REASONS
BACKGROUND
The insurer accepts Mr Proops (the applicant) sustained injury on 5 May 2015 to his left shoulder and right ankle. It subsequently accepted liability for right shoulder symptoms (consequential) but disputes liability with regards to any claimed cervical spinal symptoms either as a result of a frank injury or a consequential condition.[1]
[1]Section 78 notice dated 7 October 2022
An Application to Resolve a Dispute (ARD) was filed with the Personal Injury Commission (Commission) seeking lump sum compensation and medical expenses.
ISSUES FOR DETERMINATION
The parties agree the only issue I must determine is:
(a) whether the applicant has sustained a frank injury or consequential condition to the cervical spine as a result of the accident on 5 May 2015.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation/arbitration hearing on 5 July 2023. Mr Robison of counsel, instructed by Mr Greene, appeared for the applicant, who was present. Ms Goodman of counsel appeared for MSS Security Pty Limited (the respondent), instructed by Ms Israel. Ms Moore of Allianz was also present.
The ARD was amended by consent to plead frank injury to the cervical spine on 5 May 2015, in addition to the other injuries claimed in the Application.
Both counsel requested that I proceed to determine the liability issue with regards the cervical spine only. In the interests of brevity, I will confine my assessment to the evidence concerning the cervical spine.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attachments, and
(c) Application to Admit Late Documents dated 15 and 29 June 2023 and attachments
Oral evidence
There was no application by either party to cross-examine any witness or call oral evidence.
Evidence of the applicant
Statement of Mr Proops dated 22 February 2023
The above statement recorded background, education, employment, previous medical history and the mechanism of the injury. Specifically, Mr Proops slipped and fell landing heavily on his left elbow and twisted his right ankle at which point he records that he felt immediate pain to the left shoulder, right ankle and neck. He reports consulting with his general practitioner stating:
“The main focus on my initial complaints at the first visit was on my right ankle and left shoulder but I did also mention to him that my neck was painful… l recall that my neck pain passed after a few days…”[2]
[2] Folios 3 and 4 of the ARD.
The statement then refers to the exhaustive treatment received in relation to the upper limbs and right ankle which represented the focus of Mr Proops’ treatment, rehabilitation and incapacity.
However, Mr Proops statement continues
“…cervical spine became a problem again in about April 2021 when I developed shooting pains in ‘my neck, as well as numbness in my right arm, shoulder and neck. The pain was like a stabbing pain in my lower neck and I feel I have limited neck movement’.
…I confirm that I did injure my neck initially in the accident and the neck pain vanished after a few days. However, the neck pain returned with some level of severity after I was more reliant on the right shoulder after the left shoulder operations and I was dependent on my right arm for all my lifting, driving and my other work duties. This placed more pressure on my neck as well as my right shoulder. My significant neck pain commenced about six months after my right shoulder pain started.”[3]
[3] Folios 10 and 11 of the ARD.
Incident notification form dated 5 May 2015
This document[4] was completed on the same day of the injury. The injury was reported (unedited):
“As starting shift arrived on site, walked up the stairs to the control room, got to the top level and slipped up against wall. Landed heavily upon left shoulder and twisted to the right ankle”
[4] Folio 14 of the ARD.
The notification was later supplemented by an official claim form signed and dated by Mr Proops 10 days later on 15 May 2015.[5] Again the reported mechanism of injury is consistent and the injuries claimed were tendonitis in left shoulder, bursitis in left shoulder and problem with right ankle.
[5] Folio 17 of the ARD.
Report of Dr Brian Stephenson dated 14 April 2022
The claim for whole person impairment (WPI) is based on the qualified medical opinion of Dr Brian Stephenson who first examined Mr Proops on 4 April 2022.
Under claimant details, the report records Mr Proops suffered injury to “the left shoulder and right ankle”. However just two paragraphs later, under the “history of injury” on 5 May 2015 it is recorded:
“…as concierge, he slipped on wet decking at the Finger Wharf, Woolloomooloo causing injury to neck and both shoulders.”
(The intervening paragraphs do not explain what happened to the right ankle injury and nor how the neck was incorporated into the claim in the absence of its initial acknowledgement as being part of the injury recorded.[6])
[6] Folio 43 of the ARD.
Under a further heading “history of injury”, Dr Stephenson states:
“With MMS Security as a concierge at the Finger Wharf at Woolloomooloo, he slipped on the wet deck and landed on his left shoulder and the right ankle. He said the right ankle is satisfactory now but he has been troubled by the left shoulder. His GP Dr Al Aukidy referred him for an MRI scan of the left shoulder. I have referred to the MRI findings above. He came under the care of orthopaedic surgeon Dr Daniel Rahme and a sports physician Dr Moses. He was referred for physiotherapy treatment and then PRP injections which did not help. He continues to have problems in the left shoulder and was managed further by Associate Professor Simon Tan at St Vincent’s Clinic.”
(It is unclear why there are two ‘history of injury’ paragraphs in the same medico legal report and why they are inconsistent).
With regards diagnosis, Dr Stephenson reported:
“The diagnosis is of bilateral rotator cuff repair surgery for rotator cuff pathology which has developed as a result of the slip and fall incident on to the left side on 5 May 2015 with a series of three operative procedures in the left shoulder by Dr Tan and, in my opinion, he has developed a sequential condition in the opposite right shoulder leading to surgery performed there by Dr Tan for rotator cuff tear, labral tear and capsulitis on 1 March 2021…
As noted, the operative procedures and conservative management including physiotherapy. The diagnosis is also consistent with a Diagnosis Related Category II for the cervical spine which is likely to have developed as a result of the direct impact on the left side including the left shoulder and adjacent neck, managed conservatively”
Dr Stephenson concluded Mr Proops had a 7% WPI as a result of cervical spine injury.
Report of Dr Brian Stephenson dated 20 June 2022
In a supplementary report[7] Dr Stephenson clarified his WPI assessment as follows:
“For the cervical spine I found DRE Category II with a baseline of 5% WPI, reference AMA 5, Chapter 15, Page 392, Table 15-5, there is a clinical history and examinations findings compatible with the specific injury. There is asymmetric loss of range of motion or non-verifiable radicular complaints defined as complaints of radicular pain without objective findings of radiculopathy. The baseline for DRE Category II is 5% WPI. To that I have added 2% for ADLs, that is, for assistance with and avoidance of sport, recreation, yard, garden and homecare. Therefore, there is a 7% WPI for the cervical spine.”
[7] Folio 53.
Report of Dr Brian Stephenson dated 30 May 2023
In a supplementary opinion,[8] Dr Stephenson in response to specific questions stated:
“1) What is your diagnosis for the cervical spine injury?
The diagnosis is that of musculoligamentous sprain to the cervical spine resulting from the fall on wet decking. As he went down, he injured both shoulders and the cervical spine.
2) Did our client sustain a direct injury to his cervical spine in the subject accident?
Yes and I note there is agreement from Dr Yu in that regard as a pain specialist and also an acknowledgement by Dr Simon Tan, Associate Professor, that there should be a neurological assessment which relates to the neck.
3) In the event the cervical spine injury was not directly caused on the date of the accident, what is the causal link, if any, between the incident on 5 May 2015 and his cervical spine injury?
Not applicable.
4) Your opinion on whether the cervical spine injury was exacerbated, accelerated or aggravated as a result of secondary impact of one or more of his other injuries? Please explain your answer.
Whilst that is a consideration, in my opinion, it was an injury per se, that is, a direct injury to the cervical spine in the subject accident.”
[8] Application to Admit Late Documents filed 15 June 2023.
Report of Dr Howard de Torres dated 29 June 2022
Dr de Torres, a plastic and reconstruction surgeon following assessment on 6 June 2022,[9] recorded the following history:
“The claimant told me that he was at work at about 6:00am at the start of a 12-hour shift. He was walking along some wet decking, probably wet from dew, when he slipped outside the security office. He had to be helped up by others and did return to work initially, and drove to the airport. However, when he went to pick up some luggage at the airport, he realised had a problem as he could not do it. Therefore, later that morning he attended his GP, Dr Aukidy, who organised x-rays and a referral to Dr Rahme, who initially treated him with cortisone to his right ankle (which worked) and PRP injection to his left shoulder, to no avail.
As he had ongoing pain in his left shoulder, he was referred to Dr Simon Tan who operated upon him four times in total, leaving him with a painful left shoulder with restricted movement. As a result of this injury, he has had to overuse his right upper limb causing a secondary problem, and this has led to a further rotator cuff operation on the right shoulder. However, this also has not resolved his issues.
He has also developed what appears to be a whiplash injury to his neck as a result of the fall, and to this end he has had two facet injections for the pain.
His present situation is that he has been left with bilateral shoulder and neck pain despite the treatment, and he has scars secondary to his treatment.”
[9] Folio 54.
Report of Dr Rahme, treating orthopaedic surgeon
Dr Rahme treated the applicant on referral from the general practitioner, Dr Samim Al Aukidy. Three reports are available between 29 May 2015 to 5 November 2015. The mechanism of injury is consistent with previous records although the only symptoms recorded in these sequential reports relate to left shoulder and right ankle. A referral was made to Dr Bassam Moses, sports doctor.
Report of Dr Bassam Moses, sports and exercise medicine physician
Dr Moses first examined Mr Proops on 17 December 2015. He records the mechanism of injury as
“…slipped on a wet deck and injured his right shoulder and ankle”.
He records the complaints to these areas. At the time of his initial examination, Dr Moses recorded “examination of his cervical spine is unremarkable….”
Records show Mr Proops attended upon Dr Moses on a further five occasions ceasing on 5 May 2016. No record of attention to the neck is recorded with the focus being the left shoulder and right ankle with interventions by way of Platelet Rich Plasma (PRP) injections and corticosteroid injections.
Report of Dr Simon Tan, orthopaedic surgeon
Given the non-resolution of symptoms in the upper limbs, Dr Al Aukidy referred Mr Proops to Dr Simon Tan. Dr Tan records the history of injury as being confined to the left shoulder and right ankle. Shoulder arthroscopic debridement was performed on 3 November 2017 with a revision procedure undertaken on 20 May 2019.
On 21 August 2019, Dr Tan reported:
“He is seeing Tom once a week and this should continue. He has a lot of paraspinal and neck irritation related to the altered use and I would like Tom to provide some deep tissue work, I am confident this should settle.”
Much intervention to the shoulders occurs between 21 August 2019 and 21 April 2021. On 21 April 2021, Dr Tan reported:
“…his nerves are playing up again and he has some numbness over the front of the shoulder. The distribution cannot be explained by a dermatome nor peripheral nerve. I have reminded Aaron that he has a similar odd presentation on the left side which was eventually resolved when the inflammation settled. I understand he is due to see Dr James Yu, Pain Specialist, which is appropriate given the odd pains that still persist on the left side which is structurally intact. I still believe there is a contributing factor from his neck and I understand Tom directs management in this region.”
As at 31 August 2021, Dr Tan records that Mr Proops had still not undergone neurological assessment to investigate “the ongoing neural symptoms (shooting pains, numbness about the shoulder and neck)”.[10]
[10] Folio 101.
Report of Dr Warren Kuo, orthopaedic surgeon
Dr Kuo provided a ‘second opinion’ on 18 February 2020. He recorded the left AC joint pain and cubital tunnel syndrome but reported that on examination “cervical spine demonstrated a good range of movement”.[11]
[11] Folio 102.
Report of Regain – Sydney Spine and Pain Rehab – Dr James Yu
Initial intake records[12] confirmed complaints to right shoulder pain, left shoulder neuropathic pain (three shoulder arthroscopies) and physical deconditioning secondary to reduced physical activity mixed with significant fear avoidance.
[12] Folio 115.
Active participation in the pain management program was recorded said to commence on 3 June 2021 and cease on 23 July 2021 with the final post treatment review recorded on 16 August 2021.
Dr Yu continued to assess Mr Proops and recorded following a consultation on 23 September 2021[13] that:
“I have referred him for an MRI of cervical spine to delineate the possible pain generators contributing to his neck pain and shoulder pain…”
[13] Folio 122.
On 19 October 2021,[14] he reported:
“He presented with mid cervical neck pain, bilateral shoulder pain (right>left) and numbness in his right upper arm/shoulder.
MRI cervical spine October 2021: facet joint arthropathy C5/6 &C6/7, possible irritation of the right C6 nerve root. Left sided neural exit foraminal narrowing secondary to C6/7 with nil convincing nerve impingement… I will send a formal request to his insurer for him to undergo a bilateral C5/6 facet and transforaminal block.”
[14] Folio 123.
On 12 January 2022,[15] in response to questions from the insurer, Dr Yu reported:
“Neck pain possibly due to multilevel cervical facetogenic and discogenic issues most prominent in the C5/6 and C6/7 mixed with musculoligamentous issues…
The nature of his injury on 5 May 2015 falling and slipping on a decking could have caused direct injury to his cervical spine. The incident could have triggered the facetogenic and discogenic issues that we see in Mr Proop’s most recent MRI, which continued to deteriorate. We usually do not see these early changes in this age group….”
[15] Folio 126.
On 7 February 2022,[16] Dr Yu reported Mr Proops “…presented with persistent mid to lower cervical neck pain and bilateral shoulder pain… his neck pain is associated with crepitus on movement…”.
[16] Folio 129.
On 23 February 2022, the bilateral C5/6 facet and transforaminal block was undertaken, providing only four days of relief. On review on 7 April 2022,[17] Dr Yu recommended in view of persistent neck pain and bilateral shoulder pain that Mr Proops undergo ongoing physiotherapy and psychological intervention.
[17] Folio 130.
On 25 August 2022, due to recurrent lower neck pain and bilateral shoulder pain, a referral was given for a bone scan and SPECT CT to “delineate any possible aetiology for his pain condition”.
On 24 November 2022, Dr Yu, recorded the bone scan findings on 6 September 2022 revealed mild discovertebral degenerative uptake most prominent at C6/7 and reported:
‘…in order to further investigate any recent changes possibly contributing to his persistent neck pain, shoulder pain and arm pain, I have referred him for an MRI of the cervical spine. I have referred him to a neurosurgeon, Dr Ralph Mobbs, for further assessment and management of his persistent neck pain and arm pain…”
Report of Nancy Lien, physiotherapist/exercise physiologist
The report dated 19 June 2015,[18] refers to injury and treatment to the left shoulder and right foot only.
[18] Folio 134.
Report of Tom Lombardo, physiotherapist
In a report dated 13 May 2016,[19] treatment was recorded to be directed to the left shoulder and right ankle with orthotics suggested.
[19] Folio137.
In a report dated 20 November 2020, treatment was recorded to be directed to the left shoulder and right shoulder.
MRI cervical spine 13 October 2021
The findings on assessment were recorded as[20] minor uncovertebral joint arthropathy changes at C5/6 and C6/7, possible subtle irritation of the anterior aspect exiting right C6 nerve root… there is minimal left sided neural exit foraminal narrowing secondary to C6/7 uncovertebral joint arthropathy changes, but no convincing nerve root impingement.
[20] Folio 157.
Localised bone scan 6 September 2022
This investigation concluded:[21]
“…mild discovertebral degenerative uptake C6/7. Normal discovertebral activity with the emainder of the cervical spine. The cervical facet joints are quiescent.”’
[21] Folio 159.
WorkCover NSW – Certificates of Capacity
The certificates commence on 8 May 2005[22] and the diagnosis is injury to the left shoulder and right foot.
[22] Folio 160..
In a certificate dated 26 May 2015[23] the diagnosis is injury to the left shoulder and right ankle.
[23] Folio163.
Clinical notes – Bass Hill Medical Centre
The records show Mr Proops has been attending the practice since at least 22 September 2012.[24]
[24] Folio 204.
The original presentation following injury is recorded on 5 May 2015[25] with a report of symptoms and injury to the left shoulder and right foot.
[25] Folio 199.
In 2015, following the injury, 29 consultations are documented. These relate primarily to upper limb and right foot pain with some presentations being for general medical ailments unrelated to the workers compensation injury.
In 2016, 20 consultations are recorded. Again, these relate to upper limb and right foot pain with some presentation being for general medical ailments.
In 2017, 13 consultations are recorded, predominantly focusing on shoulder complaints.
In 2018, 18 consultations are recorded predominantly relating to management of the shoulder complaints and post surgery complications.
In 2019, 22 consultations are recorded primarily relating to wound care and repeat prescriptions for pain medications, (despite Dr Tan’s record of neck pain in 2019 (on referral by the general practitioner), no specific reference is made in the clinical notes.
In 2020, 18 consultations are recorded primarily for repeat prescriptions and complaints of pain in the shoulders.
In 2021, 23 consultations are recorded, many relate to Covid concerns, repeat prescription requests and complaints of pain in the upper limbs.
In 2022, six consultations are recorded relating to pain management and dizziness.
Respondent’s evidence
Dr Machart 3 May 2022, 30 September 2022 and 5 June 2022
Dr Machart took a history that Mr Proops sustained injury to the left shoulder and right ankle in the course of his work after he slipped and fell onto the left arm and twisted the right ankle. He records the ankle symptoms resolved but the shoulder required three surgical procedures on 3 November 2017, 20 May 2019 and 25 August 2020.
At the time of his review on 3 May 2022, Dr Machart took a history:
“Mr Proops developed pain at the base of the neck about 12 months ago. There was no additional injury. This was diagnosed by the physiotherapist as disc pathology. He had an MRI. He had physiotherapy and nerve blocks which did not help.”
On examination, Dr Machart reported reduced movement by about one quarter from expected normal in all planes with symmetrical reflexes and sensory loss not evident.
As regards diagnosis, Dr Machart reported:
“Pain, part of chronic pain syndrome, in presence of mild, age related spondylosis. No connection to the injury on 05/05/2015 anatomically or pathologically identified.”
In the subsequent report dated 30 September 2022, Dr Machart maintained his opinion and did not accept that overuse of the injured upper limbs caused structural derangement of the neck without specific trauma. Further, he reported:
“…it is not clear what the pain generator is. I am not in agreement that 4 separate facet joints were injured in the mechanism of injury as described”.
(This statement was made in response to Dr Yu’s comments on actual and proposed facet blocks to the C5/6 and C6/7 levels.)
In his report dated 5 June 2022, Dr Machart again reports:
“There was no evidence of cervical spine injury, none reported or documented as contemporaneous evidence.
There is no connection between the injury to the shoulder and the cervical spine pathology. The notion of overuse is not part of evidence-based medicine…
There was no specific injury identified. I do not know why the cervical spine was investigated. This was not a feature of injury. It is difficult to consider investigation of the cervical spine as reflecting the injury.
Bone scan conducted on 6/9/2022 was for the purpose of assessment of neck pain or upper limb pain, possibly of C5/6 and C6/7. Injury was not mentioned. Mild discovertebral changes were identified at C6/7….
None of the investigations were suggestive of injury to the neck, and none was evident in the narrative or the contemporaneous evidence.”
Report of Dr Mobbs
A direction for production was served on Dr Mobbs’ clinic. The response was that “this patient has not been seen by Dr Mobbs”.
Submissions by the applicant
Extensive submissions were made, which I summarise as follows:
i) The only issue is whether the neck condition is compensable. There are three alternatives:
-Firstly, that I could find a frank injury;
-secondly, I could find there is a consequential injury arising out of the other accepted injuries including the left shoulder, right ankle and subsequently the accepted consequential injury to the right shoulder, or;
-finally, I could possibly find that there has been an injury to the neck as a result of frank injury and consequential injury.
ii) That, if I find that the neck was injured in the fall (frank injury) s 9A of the Workers Compensation Act (1987) (the Act) and specifically the substantial contributing factor test needs to be satisfied, and if satisfied, in the absence of evidence to the contrary, the only cause of the injury is the fall.
iii) If consequential injury is found, s 9A need not be satisfied but I would need to apply the ‘common sense’ test and satisfy myself on the various tests for causation, including the ‘but for’ test, that is, would the applicant have neck pathology ‘but for’ the slip and fall accident on 5 May 2015?
iv) That the lack of contemporaneous complaint or treatment to the neck between 2015 and 2019 should not be fatal to the applicant’s case as this is explained by the statement that his initial focus was on the right ankle and left shoulder. The applicant had reported symptoms to his doctor who focused on the main presentation.
v) There is a connection between the original injury to the left shoulder and the overuse injury of the right shoulder. It follows as a matter of common sense that the neck is also involved.
vi) The insurer accepted treatment costs for neck physiotherapy. Given the respondent has accepted liability for the neck this acceptance goes against the respondent.[26]
vii) There is no other explanation for the cervical spine symptoms “but for” the injury and age related degeneration does not explain the symptoms as the interpretation is that the “specific changes” are generally not seen in his age group.
viii) Dr Machart’s finding that there is no connection to the injury is a repeated expression of opinion that is devoid of any reasoning, contrary to his earlier opinion that there was no other injury, and so should not be given any weight.
ix) The report of Dr Stephenson should be given much weight as he has taken a proper history and properly assessed the medical presentation.
x) It is more likely than not that there was a trauma to the neck in the fall, manifesting symptoms that were not a priority at the time, which resolved quickly and manifested later due to overuse injury.
xi) There is nothing in the respondent’s case that suggests a competing theory for causation.
[26] Errol Vivian Heuston v Yore Contractors Pty Ltd (unreported) – CJ Hunt, SC of NSW 11451 of 1987
Submissions by the respondent
The respondent’s submissions can be summarised as follows;
i) That any criticism of the medico-legal evidence obtained by the respondent must be disregarded as it is the applicant who has the onus to prove his case.
ii) The applicant must establish either ss 4 and 9A for a frank injury and if a consequential condition is maintained, must satisfy the ‘common sense test’.
iii) That I could not “feel an actual sense of persuasion” from the evidence that the applicant had on the balance of probabilities injured his neck on 15 May 2015 or alternatively that because of the progression of his injuries, that he has suffered a consequential condition to the neck.
iv) The applicant’s statement should be given little weight as it was written eight years after the injury and is inconsistent with the injury notification and workers injury claim form, documents completed immediately after the injury and which did not mention symptoms or injury to the neck.
v) There are no medically verified complaints of neck injury/diagnosis or symptoms between 15 May 2015 to 24 November 2022, the applicant does become symptomatic in 2021 and there is a reference to ‘neck pain’ in 2019. Pain is not a diagnosis but a symptom.
vi) Dr Stephenson’s history of injury is inaccurate which then has resulted in inaccurate conclusions as he has premised his assessment on the fact that the applicant sustained an injury to the neck on 5 May 2015 which is flawed as the applicant made no such claim at that time.
vii) Dr Tan does refer to neck symptoms,[27] but makes no diagnosis in respect of the cervical spine nor offer an expression on causation.
viii) There is no complaint of neck injury or symptoms anywhere in the medical evidence in 2015, 2016, 2017 or 2018.
ix) The applicant has failed to establish consequential condition as he has not shown or proven the causal connection and how symptoms are related to the original injury. The applicant has not relied on any medical evidence to establish a consequential condition.
x) There is no diagnosis of the cause of the applicant’s cervical spine symptoms. Attempts were made to establish a diagnosis (pain generator) by referring the Applicant to a neurosurgeon, but this did not eventuate. Some speculation that chronic pain was the cause was made but not confirmed in the absence of neurosurgical opinion.
xi) That even if the insurer did pay for neck physiotherapy, (which is unknown but unlikely), that this is not an admission of liability.[28]
FINDINGS AND CONCLUSIONS
[27] Folio 46 of the ARD.
[28] Begnell v Super Start Batteries Pty Ltd . [2009] NSWWCCPD 19. And Department of Education & Training v Sinclair, [2005] NSWCA 465.
On the basis of the evidence, I find that the applicant did not sustain an injury to the neck in the slip and fall incident on 5 May 2015. I make this finding on the basis of the information contained in the claim form and notification of incident which identified areas of injury as the right ankle and left shoulder completed all within three weeks of the injury.
I must now determine whether the applicant has suffered a consequential condition to his cervical spine.
It is important at the outset to establish what constitutes a consequential condition. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At paragraph 35 and following, Roche DP stated:
“35. By asking if Mr Kumar has suffered a s4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.”
The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 (Davis); Vivaldo; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 (Turner)) and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
The Deputy President then referred to the facts of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang):
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that ‘[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate’. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, 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.’”
His Honour said at [463]–[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
His Honour concluded that the Court was left with “an unbroken chain of undisputed evidence”. In combination, the facts went “beyond mere predisposing circumstances”. They combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train”. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.
At [55] of the decision in Kumar, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.”
Likewise, the decision of Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) dealt with the question of a consequential injury. In that matter, a schoolteacher made a claim for consequential conditions to her cervical spine and shoulders following an accepted initial injury involving an injury to her power of speech. The Senior Arbitrator at first instance found there was a consequential injury and the employer appealed.
In Brennan, at first instance the Deputy President said:
“I am satisfied that Ms Brennan has complained of pain in her neck and that there is an unbroken chain of causation from the injury to that condition. The injury to her neck is therefore a consequential condition.”
He continued, saying “the issue with respect to Ms Brennan’s shoulders caused me greater difficulty. However, her complaints with respect to pain in her shoulders have been consistent.” He referred to the opinion of Dr Endrey-Walder that it was not likely that there was shoulder pathology. He continued:
“However my role is not to determine whether there is in fact pathology, but merely whether there is a consequential condition.
I am satisfied that there is sufficient evidence to also refer the question of permanent impairment resulting from the condition in Ms Brennan ’s shoulders to an Approved Medical Specialist.”
At [100] and following in Brennan, Snell DP summarised a number of Presidential decisions concerning consequential injury, including Kumar, as follows:
“100. There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of these decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar). It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
101. In Moon (involving a compensable injury to the right shoulder, allegedly resulting in a consequential condition of the left shoulder) Roche DP at [44]–[46] described what is required:
‘44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45.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.
46.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).”
I note the submissions and specifically the focus on the lack of treatment immediately following the claimed incident. In my view the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition. As Deputy President Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]). I emphasise at this stage, that I have no reason to doubt the applicant’s credibility.
As indicated from the cases of Moon, I have to be satisfied that the applicant’s symptoms in the cervical spine have resulted from his left shoulder and right ankle injury and the right shoulder symptoms which were accepted as being consequential to the original injury. When making this assessment, I also have to undertake a common sense evaluation of the casual chain of events.
Returning to the applicant’s submissions, I do not accept that if the insurer has paid for physiotherapy to the neck (which is unknown in any event) that such payment is an admission of liability. This has been the subject of much discussion in the matters of Sinclair and Begnall.
As regards the weight to be given to Dr Stephenson’s report, I must find that his findings are based on an incorrect history, in that he was of the view that the applicant had sustained a frank injury to the neck on 5 May 2015. This is not so on the evidence before me. It follows findings that flow from that assumption are incorrect. His report does not refer to the claim form, clinical notes or incident reports. This finding does not assist the applicant as Dr Stephenson specifically excludes a consequential condition in his supplementary report, maintaining symptoms arise solely from the fall on 5 May 2015.
The applicant stressed that the radiological findings in the neck were reported to be greater than general findings in his age group. As indicated in Brennan, my role is not to determine whether there is in fact pathology, but merely whether there is a consequential condition. In any event, no reason is offered as to why such findings may be greater than that present in man of his age group.
Returning then to the evidence summarised above, I find that the applicant has been consistently managed by the same medical practice and generally managed by the same general practitioner. There is no dispute that he has had significant shoulder symptoms prompting management to various specialists including Dr Tan, Dr Moses, Dr Rahme, Dr Kuo and finally pain specialist, Dr Yu. The reports following consultations are silent on treatment or symptoms to the neck until 2021, although there is a mention of neck ‘pain’ in 2019. Dr Kuo however in February 2020 does examine the neck and reports “a good range of movement”.[29] If the applicant had developed symptoms as a result of shoulder interventions and surgery, I would have expected that there be some record of complaint to these specialists. On the evidence before me, I cannot find that there have been consistent complaints with regards to the neck/cervical spine throughout the years.
[29] Folio 102.
Appropriately, the applicant was referred to Dr Mobbs as in 2021 his neck symptoms were reported to be troublesome. The cause of the symptoms were unidentified at the time resulting in further requests for investigations and specialist opinion (which was not undertaken).
The evidence shows that between 2015 and 2019 there are no complaints of neck symptoms. There is a complaint of neck pain in 2019 (four years after the fall) but no cause identified and no history of onset recorded. From that point, the records are silent on any symptoms or complaints in the neck/cervical spine until 2021 at which time symptoms are recorded, radiological investigations undertaken but no clear diagnosis or cause for symptoms identified.
Overall, I cannot find that the applicant has a consequential condition to the cervical spine as a result of his workplace injury on 5 May 2015. This is because there is no complaint in the clinical records of symptoms in 2015, 2016, 2017, 2018. There is a complaint of pain in 2019 but no real investigation or treatment is rendered and further there is a failure at that point to reference those symptoms to any workplace injury or intervention arising from that injury. A deterioration is noted in 2021 at which time treatment is rendered but again no record of mechanism of injury or complaint is identified with ongoing intervention recommended by neurosurgeon Dr Mobbs to clarify the pain generator but which did not take place. At the time of my Determination, there has been no firm diagnosis established and the treating evidence before me is silent on the relationship of any neck/cervical spine symptoms to the original injury. I find that there is no consistent complaint of symptoms. The causal chain has not been established or satisfied. Dr Stephenson specifically excludes consequential injury/condition and Dr Machart is of the same view, but comes to his conclusion using a different rationale.
Applying the common sense test, as I must do, I cannot find on the basis of the extensive medical evidence and specialist intervention described above, that the chain of causation has been satisfied through the lens of the common sense test, and so cannot find the symptoms in the cervical spine are consequential to the work injury, on the balance of probabilities. For this reason, I must find in favour of the respondent.
SUMMARY
For the above reasons, I find the applicant has not established he has suffered a consequential condition in his cervical spine as a result of the accepted injury to his left shoulder, right ankle and right shoulder on 5 May 2005, and I will accordingly make the findings and orders set out on page 1 of the Certificate of Determination.
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