Ramasamy v Rail Corporation of New South Wales

[2009] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: Ramasamy v Rail Corporation of New South Wales (2009) 8 DDCR 1
CITATION:			Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41
APPELLANT:			Alagar Ramasamy
RESPONDENT:			Rail Corporation of New South Wales
INSURER:			RailCover
FILE NUMBER:			A1-5489/08
DATE OF ARBITRATOR’S DECISION:			17 November 2008
DATE OF APPEAL HEARING:		9 April 2009
DATE OF APPEAL DECISION:			16 April 2009
SUBJECT MATTER OF DECISION:			Injury; aggravation of disease; sections 4(b)(ii) and 16 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:			Acting President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr Hickey, instructed by Slater & Gordon
Respondent:	Mr Young, instructed by Sparke Helmore
ORDERS MADE ON APPEAL:			For the reasons given in this decision, the Arbitrator’s determination of 17 November 2008 is confirmed.
Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. Mr Ramasamy was born in India in 1953.  He came to Australia in February 1998 and started work with Rail Corporation of New South Wales (‘RailCorp’), formerly known as State Rail Authority of New South Wales, as a casual customer service attendant on 21 July 2000.  In March 2001, he was appointed to a permanent position at Seven Hills railway station.  His duties required him to empty garbage bins.

1. Mr Ramasamy’s evidence is that on 5 February 2002 he lifted a plastic rubbish bag from a metal bin when he felt a sharp pain in his “lower back” and a “niggling pain” over his entire back.  The exact location of his pain is the subject of conflicting evidence and is considered in detail below.  He was unable to complete his work and reported his injury to his manager, Darryl Field.

1. The next morning he felt pain in his back and consulted his general practitioner, Dr Abraham, who certified him unfit for work.  He returned to work on or about 15 February 2002.  In either late March or April 2002, he felt ill, had a fever and his pain had increased. 

1. He was referred for a CT scan on 26 April 2002, which revealed a “pathological crush fracture of T3 vertebral body” and raised a suggestion of an infection “such as TB or tumour such as myeloma or metastases”.  Mr Ramasamy was immediately admitted to Westmead Hospital where he was commenced on anti-tuberculous medications and pyridoxine.  Subsequently, no mycobacteria were isolated and he was discharged on 17 May 2002, to continue treatment of tuberculosis at home.

1. Mr Ramasamy developed weakness in his legs and was readmitted to Westmead Hospital on 21 May 2002 and on 27 May 2002 he underwent T2-3 spinal cord decompression at the hands of Dr Cummine.  Biopsy material was consistent with tuberculosis, but mycobacterium tuberculosis was not isolated from the specimen.

1. Mr Ramasamy’s claim was initially accepted but declined by letter from the State Rail Authority of New South Wales dated 5 August 2002, relying on the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. The Commission registered Mr Ramasamy’s Application to Resolve a Dispute (‘the Application’) on 18 July 2008.  Mr Ramasamy sought weekly compensation from 17 August 2002 until 24 July 2003 and then from 7 February 2007 to date and continuing, medical and hospital expenses under section 60 of the 1987 Act in the sum of $42,613.95, and lump sum compensation in respect of a 20% whole person impairment as a result of impairment of his thoracic spine.  The application alleged that:

“On or about 5 February 2002, the applicant whilst in the course of his employment was emptying a large garbage bin when as he strained to pull the rubbish bag out of the bin, he felt a sharp pain and suffered injury to his back.”

1. RailCorp filed a Reply on 28 July 2008, confirming that the matters in dispute were the matters listed in the “dispute notice” attached to the application, that is, the letter declining liability on 5 August 2002.  In addition, RailCorp also sought leave to dispute injury, incapacity, Mr Ramasamy’s entitlement to lump sum compensation, section 60 expenses and whether employment had been a substantial contributing factor to a disease contracted by Mr Ramasamy or any aggravation, acceleration, exacerbation or deterioration of a disease.

1. The matter was listed for conciliation and arbitration on Thursday 16 October 2008.  On that day counsel for RailCorp sought leave to dispute whether Mr Ramasamy sustained any injury to his thoracic spine and whether he suffered any incapacity.  The Arbitrator did not determine that application, but heard full argument on all issues (T10.54). 

1. In a reserved decision delivered on 17 November 2008, the Arbitrator did not determine whether she granted leave to RailCorp to dispute injury and incapacity, but determined that Mr Ramasamy had not established that his employment was a substantial contributing factor to his injury and she therefore made an award in favour of RailCorp.  The Commission issued a Certificate of Determination on 17 November 2008 in the following terms:

“1.  An award for the respondent.
2.  No order as to costs.”

1. By an appeal filed on 18 December 2008, Mr Ramasamy seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. There is no issue that the monetary thresholds in section 352(2) are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

THE EVIDENCE

Lay Evidence

1. Mr Ramasamy’s evidence is set out in his statement dated 13 March 2007, which may be summarised as follows:

   (a)prior to 5 February 2002, he had not suffered any injury or pain in his back or legs;

(b)his position at Seven Hills railway station required him to empty garbage bins into mobile bins which in turn were emptied into large industrial bins;

(c)on 5 February 2002, the garbage bins at the station were full of water and had a lot of empty beer bottles in them.  To empty the bins, Mr Ramasamy had to remove the metal rubbish bin from its stand and place it on the platform.  He then lifted the plastic bag from the bin and placed it into the mobile bin.  As he lifted the plastic bag he felt a sharp pain in his “lower back and indeed a niggling pain” over his “entire back” (Mr Ramasamy’s statement, paragraph 12).  He was unable to complete his work and reported his injury to his manager, Mr Field, who advised him to rest, finish his shift, and then go home;

(d)on returning home, Mr Ramasamy was in severe pain along his “back”.  He took panadol.  The next morning he felt constant pain in his “back” and he consulted his general practitioner, Dr Abraham, at 161 Hawkesbury Road, Westmead;

(e)Dr Abraham advised him to take panadol tablets and certified him unfit for work for a period;

(f)after one week he returned to work.  His manager recorded the incident and asked him to do lighter duties, which he continued for several weeks;

(g)the pain in his back did not stop but increased every day (Mr Ramasamy’s statement, paragraph 19);

(h)on 25 March 2002, during his evening shift, Mr Ramasamy felt sick and had a fever from his pain.  He finished his shift in the early hours of 26 March 2002 and attended on Dr Abraham who advised him to undertake physiotherapy and continue with pain relieving medication;

(i)Mr Ramasamy received physiotherapy treatment over the following month, however, his pain did not improve but increased.  His doctor referred him for a CT scan, which he underwent on 26 April 2002.  As a result of the findings in the CT scan, Mr Ramasamy was admitted to Westmead Hospital under the suspicion that he had tuberculosis, though tests for that disease were negative.  Notwithstanding the negative test, treatment was commenced for tuberculosis and Mr Ramasamy was discharged on 17 May 2002;

(j)after being discharged, he found that he was unable to walk properly and that he was losing power in his right leg;

(k)he was readmitted to Westmead Hospital on 21 May 2002, after having fallen over on three occasions at home because of a loss of feeling in his right leg.  On 27 May 2002, he underwent a T2-3 spinal cord decompression by Dr Cummine;

(l)on 25 June 2002, Mr Ramasamy was transferred to St Joseph’s Hospital at Auburn where he remained for rehabilitation until 21 August 2002, and

(m)he returned to work on 25 July 2003 as a customer service attendant, which work he continued until RailCorp terminated his employment on 7 February 2007.

1. On 14 February 2002, Mr Ramasamy completed a “Claim For Compensation” (‘the claim form’).  Under the heading “How did the injury happen?”, Mr Ramasamy wrote:

“When I was lifting the garbage bags from bins on platform 3 and 4 suddenly felt a pain in my back side.  I thought it was an ordinary pain due to heavy weight of the bags.  After went back home, I realised that I am [sic] not able to bend down.”

1. Under the heading “What injuries did you suffer?”, Mr Ramasamy wrote:

   “Muscles strech [sic] (pull) in the back side
   Not able to bend down”

1. Mr Ramasamy’s supervisor signed the claim form on 20 February 2002.  It has a “Received” stamp of the same date from the Stations and Operations Improvement Unit and from RailCover of 21 February 2002.

1. In a document headed “Workplace Injury Initial Notification Form” (‘the Initial Notification Form’) and dated 6 February 2002, the “details of the injury” are described as “MUSCLE STRAIN UPPER BACK RIGHT HAND SIDE”.  “D Field” completed the form, though it is not signed.  The document has a “Received” stamp from RailCover dated 21 February 2002.

1. In a document headed “Supervisor’s Report of Injury” dated 6 February 2002 and signed by Darryl Field, the body part affected by the injury on 5 February 2002 is described as “strain upper back right hand side”.  The document states that the employee had resumed work on Wednesday 13 February 2002.  It has a “Received” stamp from Stations and Operations Improvement Unit dated 20 February 2002.

1. In an undated document headed “Return to Work Plan”, the injury is described as “low back” and the date of return to work is given as 13 February 2002.  Mr Ramasamy was to avoid lifting over 2 kilograms, sitting for greater than 20 minutes, standing for greater than 15 minutes and to avoid excessive climbing of stairs.  This document has a “Received” stamp from RailCover dated 21 February 2002.

Medical Evidence

1. Mr Ramasamy saw Dr Abraham on 6 February 2002.  Whilst the doctor’s notes are difficult to read, the entry for 6 February 2002 confirms that Mr Ramasamy was lifting a garbage bag on 5 February 2002 when he experienced pain in his right lower back.  This is confirmed in the doctor’s report of 6 August 2002 where he said that Mr Ramasamy’s signs and symptoms on examination on 6 February were “consistent with a soft tissue spasm of [the] lower back.”  The notes also record “spine non-tender”.  The report added that Mr Ramasamy complained of “right-sided lower back pain on the 6th of February and Left scapular pain later in that week.” 

1. Dr Abraham next saw Mr Ramasamy on 19 February 2002, when it was recorded that he was “much better” and he was “cleared f [sic, fit] (N) duties fr [sic, from] 15/2/02”.  Consistent with this entry, Dr Abraham issued a WorkCover certificate on 19 February 2002 declaring Mr Ramasamy fit for his pre-injury duties from 15 February 2002.  The certificate diagnosed Mr Ramasamy as having sustained a “soft tissue injury to lower back”.  The notes for 19 February 2002 also include a complaint of pain in the left scapular area and refer to a twelve-year-old fracture and a motorbike accident.  The notes again record “no spinal tenderness”.  The notes are consistent with Dr Abraham’s 6 August 2002 report, which refers to “restricted rotation of the thoracic spine” which was “consistent with a soft tissue spasm of the upper back”.

1. The next entry in the clinical notes is on 28 February 2002, when Mr Ramasamy complained of left sided scapular pain and aching in his left arm and left little finger that kept him awake at night.  The pain was said to be mainly at the left “infrascapular area”, though the entry may be “intrascapular”.  Mr Ramasamy was said to be doing normal duties at work.  There is then a reference to “pain since lifting injury on 6 [sic, 5] February 2002 back improved, but shoulder pain ↑”.  The notes also record “back improved, but shoulder pain ↑”.  They also refer to Mr Ramasamy being mildly tender at the facet joints at T6 and T7 and either the interscapular or the infrascapular area.  There is a reference to muscle spasm.

1. The notes then record that Mr Ramasamy next attended on 19 March 2002 when Dr Abraham recorded a complaint of left scapular and mid upper back pain.  There appears to be a reference to “RROM neck & shoulder”, which counsel agree means “reduced range of movement”. 

1. Mr Ramasamy attended on Dr Abraham on six occasions in April 2002 but, due to the poor photocopying, the exact dates of two of those attendances are unclear.  He complained of severe left scapular pain, especially at night and being unable to sleep.  On one of those visits, Dr Abraham recorded that the pain was “now affecting whole of upper back”.  On that day the doctor also wrote “? Cause”.  On 10 April 2002, Mr Ramasamy complained of feeling constantly dizzy and having sweats.  On 24 April 2002, Dr Abraham recorded that the pain in the left scapula area was no better.  There is a reference to a Dr Hane, possibly a rheumatologist.  Dr Abraham referred Mr Ramasamy for a CT scan.

1. The CT scan was performed on 26 April 2002.  The radiologist concluded:

“Pathological fracture of the T3 vertebral body with underlying bone destruction involving T3 and surrounding paravertebral soft tissue thickening.  The main considerations for the described appearance are infection, such as TB or tumour such as myeloma or metastases.  FNA of the paravertebral soft tissue mass may be helpful for diagnosis.  Epidural extend of the described processes is not assessed on CT and MRI may be helpful in this regard.  Mild to moderate narrowing of the thoracic canal at the T9/10 level related to osteophytes and facet joint hypertrophy.”

1. Mr Ramasamy took the CT scan results to Dr Abraham on the same day.  His notes record:

“CT spine → T3 – pathological #

? cause – TB

- malignant”

1. Mr Ramasamy was immediately admitted to Westmead Hospital where a CT guided biopsy was suggestive of tuberculosis.  An MRI scan showed a pathological fracture at T3 and epidural inflammatory mass at T3 tracking up with the T2.  Subsequently, no mycobacteria were isolated and he was discharged on 17 May 2002 to continue treatment at home for tuberculosis.

1. Mr Ramasamy developed weakness in the legs and was readmitted to Westmead Hospital on 21 May 2002 and on 27 May Dr Cummine performed a T2-3 spinal cord decompression.  Biopsy material was consistent with tuberculosis but mycobacterium tuberculosis was not isolated from the specimen.

1. Mr Ramasamy was transferred to St Joseph’s Hospital for rehabilitation on 25 June 2002 and ultimately discharged home on 21 August 2002.

1. Mr Ramasamy relies on a report from Dr Packham, staff specialist in infectious diseases at Westmead Hospital, dated 22 August 2002.  Dr Packham took a history that Mr Ramasamy felt “sudden back pain in the thoracic area” while lifting at work in February 2002.  A musculoskeletal strain was diagnosed and he was treated with simple analgesia and physiotherapy.  The pain increased and became constant and severe.  He then developed night sweats and fevers and lost ten kilograms of weight in the period from February to April 2002.

1. Dr Packham’s diagnosis was a “crush fracture of the T3 vertebral body and tuberculous spinal osteomyelitis with epidural extension and spinal cord compression”.

1. On the issue of causation, Dr Packham said:

“Mr Ramasamy’s work did contribute to his illness, as his initial symptoms were precipitated by lifting at work.  The predisposition to this injury, and the subsequent complications, are attributable to tuberculous infection.  I would consider the incident at work on the 5^th of February 2002 aggravated Mr Ramasamy’s problem.”

1. Dr Abraham referred Mr Ramasamy to Dr Guirgis, though precisely when is unclear.  The referral letter is dated 7 April 2004, but Dr Guirgis wrote two reports to Dr Ibrahim (presumably Dr Abraham) dated March 2004 and states that he saw Mr Ramasamy on 2 March 2004. 

1. The referral note states:

“He injured his lower back while lifting a garbage bag at work on 5/2/02.
The pain later migrated to [the] upper spine & when it got severe, a CT of T-spine was done and it showed a pathological # at T3, T4.”

1. Dr Gurigis reported to Mr Ramasamy’s solicitors on 22 April 2004 that Mr Ramasamy was lifting a garbage bag at work on 5 February 2002 when he “felt sharp snapping pain in his lower back”.  He managed to complete his shift, but could not do all the jobs required of him because he could not handle any heavy weights.  The next morning he saw his family doctor who put him off work for one week.  As time passed the pain in the “upper half of his back gradually and steadily worsened and on 26 March 2002, he developed another acute episode which forced him off work for 1 month during which he had physiotherapy”.  The situation worsened and further investigations confirmed the presence of a fracture of one vertebra.  On examination, tenderness was elicited over T1 to T6.

1. Under “Opinion”, Dr Gurigis concluded:

“The 5-2-2002- incident resulted in musculo-ligamentus sprain/strain of the upper thoracic area of the spine which was the site of an ongoing granulomatous inflammatory process affecting the third thoracic vertebra and spreading upwards to involve the second thoracic vertebrae.  This resulted in a pathological fracture of the thoracic vertebra.  Prominent endplate spondylotic changes and facet joint arthrosis developed at the T3-4-5 levels.  I advised to continue with conservative treatment.  Further surgical treatment is not indicated.”

1. RailCorp attached two medical reports to its Reply.  The first was from Dr Kafataris, injury management consultant, dated 23 September 2002.  Dr Kafataris did not examine Mr Ramasamy but merely reviewed Dr Packham’s report of 27 August 2002.  Whilst Dr Kafataris did not dispute that Mr Ramasamy had tuberculosis of the spine and sustained a “pathology fracture”, there remained several issues that had not been satisfactorily explained or addressed.  Until those issues were addressed, he was unable to attribute the crush fracture to Mr Ramasamy’s employment.  Those issues were:

(a)the diagnosis in Dr Abraham’s initial WorkCover certificate dated 6 February 2002 was “soft tissue injury to the lower back”.  On 19 February 2002, Dr Abraham issued a certificate backdating Mr Ramasamy’s fitness for pre injury duties to 15 February 2002.  If Mr Ramasamy had sustained a crush fracture of his spine on 6 February 2002, then Dr Kafataris found it “incredulous to suggest that he was fit for his pre injury duties within less than 14 days.  This is simply not consistent with healing times for spinal fractures”;

(b)according to Dr Packham’s report, Mr Ramasamy was first admitted to Westmead Hospital on 26 April 2002 following a period of fever, night sweats and weight loss from February to April 2002.

1. Dr Kafataris concluded:

“It is my opinion that the patient has had tubercular osteomyelitis intercurrent to his work related lower back injury.  He is likely to have sustained a pathological fracture during a relatively innocuous incident at home.  Indeed the definition of a ‘pathologic fracture’ is a fracture that occurs after relatively minor trauma.  Again I find it exceedingly difficult to reconcile a fractured T3 vertebra ultimately requiring surgical decompression with a certification of fitness to return to pre-injury duties less than 14 days after the fracture occurred.”

1. Dr Kafataris added on page 2 of his report that the injury “was not sustained at work given the history provided.”  It was “far more likely that he has sustained simple musculoskeletal strain to his lumbar spine and then sustained the precipitating injury for his thoracic fracture outside the workplace.”

1. Also attached to RailCorp’s Reply are two reports from Dr Bencsik, consultant orthopaedic surgeon, both dated 2 May 2008.  Dr Bencsik examined Mr Ramasamy on 18 April 2008 when he took the following history:

“As he bent to remove one particular plastic liner it was unusually heavy containing bottles and he was aware of back pain such that he was unable to complete his shift.  After taking a little rest he was sent home by the manager.”

1. The history also noted that Mr Ramasamy was originally given one week off work by his general practitioner and then resumed pre-injury duties on trial on 15 February 2002.  However, day-by-day the back pain became much worse, yet after a week on light duties Mr Ramasamy was placed on night shift again requiring him to empty garbage bins.  With his back pain worsening he returned to his general practitioner and x-rays showed a fracture of the third thoracic vertebra.  The fracture was “clearly a pathological fracture and he had developed night sweats and fevers and weight loss in association.”

1. Dr Bencsik diagnosed Mr Ramasamy as having a “granulomatous lesion at the T3 vertebrae most probably tubercular which underwent a pathological fracture.”  The method of injury would not be expected to cause a fracture in a normal thoracic vertebra.  He thought that tuberculosis was the most likely presumptive diagnosis.  He felt that Mr Ramasamy had reached maximum medical improvement and that he would continue to have sensitivity and pain in his back leading to a restricted ability to lift such that he should not lift any more than ten kilograms.  He should also be limited in his walking and climbing stairs.

1. RailCorp then asked the doctor the following question “Please also provide your opinion in writing in relation to whether there is any connection between Mr Ramasamy’s injury to his back occurring 5 February 2002 and the subsequent diagnosis of tuberculosis”.  Dr Bencsik replied:

“The subsequent diagnosis of tuberculosis was presumptive on the appearance of the granuloma.  The tuberculosis must have been pre-existing, possibly for many years, but the weakening of T3 by this granuloma has precipitated the fracture occurring on 5 February 2002.”

1. RailCorp also asked the doctor “We require an opinion in relation to whether or not the tuberculosis has any relationship to Mr Ramasamy’s initial work injury to his back on 5 February 2002 or the subsequent nature of his employment by way of causation.”  The doctor replied:

   “The granulomatous lesion, which I assume was tuberculosis, has a direct relationship to the initial work injury causing a T3 fracture on 5 February 2002.  With the degree of pain that he would have sustained it was clearly the primary cause for his fracture.”

THE ARBITRATOR’S DECISION

1. The Arbitrator made the following findings and observations:

   (a)whilst RailCorp sought leave to dispute injury and incapacity, she found it unnecessary to determine those issues (Statement of Reasons for Decision (‘Reasons’), paragraph 9);

   (b)the tasks involved in Mr Ramasamy’s employment were a contributing factor to the injury (section 9A(3) of the 1987 Act) (Reasons, paragraph 12));

(c)Dr Abraham noted that the upper back injury could be an aggravation of an old injury caused by lifting at work.  He concluded that “the cause is unclear” (Reasons, paragraph 17);

(d)Dr Packham did not specify how the incident at work on 5 February 2002 “aggravated the problem”.  Therefore, she found that the doctor’s report could not be read to challenge a finding that there was a probability that the injury, or a similar injury, would have occurred at the same time or the same stage of the worker’s life if he had not been at work and had not worked for RailCorp (Reasons, paragraph 36);

(e)Mr Ramasamy would have sustained the injury “being the pathological fracture of the T3 vertebra involving T2, had he not worked for the Respondent and had this incident not occurred” (Reasons, paragraph 37).  This was because the fracture was pathological in nature and occurred at the site of the ongoing granulamatous inflammatory lesion and could have occurred at any time with minimal effort;

(f)there was no evidence as to Mr Ramasamy’s state of health prior to the injury on 5 February 2002 (Reasons, paragraph 38), and

(g)the incident on 5 February 2002 was “somewhat strenuous” and resulted in a lower back strain, which resolved.  Having found that the injury to the thoracic spine involving a T3 fracture involving T2 could have occurred at around the same time with little exertion by Mr Ramasamy, whether or not he worked for RailCorp, the fact that it did occur at work after heavy lifting was not a substantial factor (Reasons, paragraph 44).

1. The Arbitrator did not make a finding as to the nature of Mr Ramasamy’s injury.  Without making such a finding, it was not possible to determine if employment was a substantial contributing factor to the injury.  Therefore, the Arbitrator’s approach was flawed.  In these circumstances the matter must be re-determined.  As there are no credit issues, I am in as good a position as an Arbitrator to re-determine the matter and that is the course I propose to adopt.

ISSUES IN DISPUTE ON REVIEW

1. The issues in dispute in the appeal are whether:

(a)Mr Ramasamy is entitled to rely on Dr Bencsik’s reports dated 2 March 2008 (‘Dr Bencsik’s reports’);

(b)RailCorp is entitled to dispute the issues of injury and incapacity, having not disputed those matters in its section 74 notice (‘issues in dispute’), and

(c)the Arbitrator erred in determining that Mr Ramasamy’s employment was not a substantial contributing factor to an injury under section 4(a) of the 1987 Act, or an injury which invoked sections 4(b)(ii) and 16 of the 1987 Act (‘injury/aggravation of disease’).

SUBMISSIONS, DISCUSSION AND FINDINGS

Dr Bencsik’s Reports

1. RailCorp attached Dr Bencsik’s reports to its Reply.  At the arbitration on 16 December 2008, RailCorp elected to rely on Dr Kafataris’ report only and not Dr Bencsik’s reports (T1.28).  Counsel for Mr Ramasamy, Mr Hickey, indicated that he sought to rely on Dr Bencsik’s reports (T45.36).  The Arbitrator replied, “Ah, Dr Guirgis is qualified.  I don’t think you can” (T45.38).  No further submissions were heard on the issue and the Arbitrator did not refer to it in her Reasons.

1. Mr Hickey seeks to rely on the reports on review.  RailCorp opposes that application. 

1. Clause 43 of the Workers Compensation Regulation 2003 restricts a party to one “forensic medical report” in any proceedings on a claim in relation to an injured worker. The term “forensic medical report” is defined to mean a “report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement”. The Arbitrator wrongly referred to Dr Guirgis being “qualified”. He was Mr Ramasamy’s treating orthopaedic surgeon and his report was therefore not a “forensic medical report”.

2. As RailCorp filed and served the reports with its Reply, Mr Ramasamy was entitled to take the view that they would be tendered in evidence. As RailCorp did not rely upon the reports at the arbitration and as Mr Hickey sought to do so, it is not unreasonable that Mr Ramasamy be permitted to rely on them on review, provided his relying on them does not breach clause 43. The only other medical report relied on by Mr Ramasamy is from Dr Packham, also a treating specialist. Therefore admitting the report will not breach clause 43. There is no prejudice to RailCorp in allowing the report into evidence and that is the course I propose to adopt.

Issues in Dispute

1. RailCorp’s section 74 notice, dated 5 August 2002, only disputed whether Mr Ramasamy’s employment was a substantial contributing factor to his injury.  At the arbitration, it sought to also dispute injury and incapacity.  The Arbitrator heard submissions on that issue but did not rule on it.  As I understand it, RailCorp does not dispute that Mr Ramasamy injured his lower back at work on 5 February 2002, but wishes to argue that he did not injure his thoracic spine.  It argues that Mr Ramasamy is not prejudiced by the late notification of these issues because whether Mr Ramasamy injured his thoracic spine was raised as an issue in Dr Kafataris’ report of 23 September 2002, which was attached to its Reply in Mr Ramasamy’s prior claim arising out of the same incident (matter no. 9050-07). 

1. The initial notice of claim for compensation dated 18 January 2005 described Mr Ramasamy’s injury as follows:

“On or about 5 February 2002, our client was in the course of his employment emptying a garbage bin, when as he strained to pull the bag out of the bin he felt a sharp pain in his back.”

1. The Application and the notice of claim merely allege an “injury to the back”, not distinguishing between the upper or lower back.  RailCorp does not dispute that Mr Ramasamy injured his lower back on 5 February 2002, but disputes that he injured his thoracic spine (his upper back).  In response to RailCorp’s application, Mr Hickey argues, as he did before the Arbitrator, that he is prejudiced by the proposed amendment.  I do not accept that any prejudice exists.  All of the relevant evidence dealing with the nature of Mr Ramasamy’s injury, whether it was to his upper back, his lower back, or to both, is before me.  He conducted his client’s case, both at the arbitration and on appeal, as if the nature and extent of Mr Ramasamy’s injury was disputed and made detailed submissions on that issue. 

1. Given the broad and general allegation in Mr Ramasamy’s claim form, it is understandable that RailCorp did not initially dispute injury.  It accepted then, and still accepts, that he injured his back at work on 5 February 2002.  It seeks, however, to dispute that he injured his upper back.  Having regard to the history of this matter and the provisions of section 354(3) of the 1998 Act, which requires that the Commission is to act according to equity, good conscience and the substantial merits of the case, it is in the interests of justice (section 289A(4) of the 1998 Act) that RailCorp be allowed to dispute the allegation that Mr Ramasamy injured his upper back and to dispute incapacity.  I grant leave to RailCorp to dispute these matters.

Injury/Aggravation of Disease

1. Whether Mr Ramasamy relied on the disease provisions at the arbitration is unclear.  At T47.18, Mr Hickey submitted:

“The submission I make is that you would find injury occurred. It was superimposed upon a process in the worker’s neck, according to the medical evidence, and that is sufficient for either injury on a frank basis or injury on a disease basis. Disease isn’t really relied upon, but it could be relied upon, but, in any event, there is either an aggravation of an underlying problem by the injury or a frank injury with an underlying problem.” (emphasis added)

1. At T52.50, Mr Hickey submitted:

“you could infer that perhaps a pre‑existing underlying condition, the disease aspect, was a substantial cause and not just pathological fracture, as has been referred to. The employment has caused the pathological fracture because of the heavy nature of the lift, and the fact that someone has an underlying susceptibility does not lessen the application of the work being a substantial factor causing the injury. That’s all I’m saying. Sorry, excuse me. Yeah, my solicitor reminds me that Dr Guirgis’s opinion was and is that the injury resulted in the pathological fracture. So if you accept the history that it was heavy work, perhaps it was unexpected ‑ nevertheless that’s what happens with workplace injuries ‑ you would find that employment duties were a substantial contributing factor to his injury.”

1. On appeal, Mr Ramasamy’s argument has shifted quite significantly and, though he has not abandoned reliance on a section 4(a) injury (‘a frank injury’), he now seeks to present a case of an injury in the nature of an aggravation of a disease under sections 4(b)(ii) and 16 of the 1987 Act (‘an aggravation injury’). Whilst the Application did not refer to Mr Ramasamy suffering from a disease and did not refer to an aggravation injury, RailCorp took no objection to the different case presented on appeal. As the Commission is not bound by strict pleadings and so that the case is determined according to its substantial merits (section 354(3) of the 1998 Act), it is appropriate that the disease issue be argued and determined on review.

1. It is now submitted on behalf of Mr Ramasamy:

   (a)the evidence from Mr Field, Dr Abraham and Mr Ramasamy supports a finding that Mr Ramasamy injured his upper back on 5 February 2002;

   (b)the pre-existing morbid condition in the worker’s thoracic spine was a disease condition within section 4(b)(ii) of the 1987 Act and the strenuous work performed on 5 February 2002 aggravated, exacerbated or accelerated that condition. Mr Ramasamy had no symptoms until he engaged in heavy lifting without assistance at work on 5 February 2002;

   (c)it is only necessary to prove that employment was a substantial contributing factor to the aggravation of the disease, not that it was a substantial contributing factor to the underlying disease or morbid condition. The evidence supports a finding under section 16 of the 1987 Act that Mr Ramasamy’s employment injury aggravated a disease. Once the Arbitrator was satisfied that employment was a substantial contributing factor to the aggravation of the disease then, provided incapacity resulted from the aggravation, Mr Ramasamy was entitled to a finding of a deemed happening of injury on the date of economic incapacity;

(d)reliance is placed on Austin v Director General of Education (1994) 10 NSWCCR 373 (‘Austin’);

(e)employment need only be a substantial contributing factor to the aggravation, not to the disease process overall (Murray v Shillingsworth [2006] NSWCA 367 (2006) 68 NSWLR 451 (‘Shillingsworth’); Perry v Tanine Pty Ltd t/as Ermington Hotel and Others (1998) 16 NSWCCR 253 (‘Perry’); Cant v Catholic Schools Office (2000) 20 NSWCCR 88 (‘Cant’);

(f)the preponderance of the medical evidence supports the contention that Mr Ramasamy’s disease was aggravated by his employment.  There is an aggravation of a disease if it is made “more grave, more grievous or more serious in its effects upon the patient” (see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639 (‘Semlitch’));

(g)Mr Ramasamy’s symptoms and incapacity commenced from 5 February 2002.  It is a reasonable inference that the incident of injury itself may have brought on a pathological change to some extent at the site of the degenerative condition in Mr Ramasamy’s thoracic spine, and

(h)there is no evidence from Dr Stephen, who examined Mr Ramasamy on behalf of RailCorp on or about 10 February 2005.

1. Mr Hickey also made extensive additional submissions at the oral hearing of the appeal on 9 April 2009.  Those submissions have been recorded and, though I have had careful regard to them, I will not repeat them.

1. It is submitted on behalf of RailCorp that:

(a)notwithstanding the reference to injury to the “upper back right-hand side” by Mr Field in a Supervisor’s Report of Injury and Workplace Injury Initial Notification Form dated 6 February 2002, Mr Ramasamy and Dr Abraham only referred to lower back pain in the claim form dated 14 February 2002 and a medical certificate dated 19 February 2002 respectively;

(b)Dr Abraham’s notes demonstrate that Mr Ramasamy first complained of pain in the “mid upper back” on 19 March 2002, six weeks after the injury on 5 February 2002.  He complained of “left shoulder pain” on 19 February 2002, 14 days after injury on 5 February 2002;

(c)Dr Packham recorded an incorrect history of “sudden back pain in the thoracic spine” on the date of injury and was alone in describing the pathology at T3 as a “crush fracture”;

(d)there is no evidence from the treating orthopaedic surgeon, Dr Cummine;

(e)Dr Kafataris found it difficult to reconcile a fracture at T3 with a certification of fitness to return to work to pre-injury duties less than 14 days after the fracture occurred;

(f)the claim form, clinical records and medical certificates from Dr Abraham do not support Mr Ramasamy’s assertions that he experienced continuous upper back symptoms since the date of injury.  The submission that complaints of left shoulder pain 14 days after date of injury equate to work related trauma to the thoracic spine is misconceived.  On 19 March 2002, Dr Abraham considered it necessary to distinguish “left scapular” from “mid upper back” pain by referring to each region separately and that entry was the first reference to symptoms in the thoracic spine;

(g)the Arbitrator’s finding that employment was a contributing factor to the onset of the fracture to T3 was against the weight of the evidence;

(h)Dr Guirgis did not explain how or why the injury to the lower back affected the thoracic spine, or, if a musculo-ligamentous sprain/strain of the upper thoracic area was sustained at work, how such an event would cause the pathological fracture at T3 shown on CT scan taken 80 days later on 26 April 2002;

(i)Mr Ramasamy has not discharged the onus of proving that work was a substantial contributing factor to the pathological fracture at T3;

(j)it was open to the Arbitrator to prefer the evidence of Dr Kafataris, and

(k)Mr Ramasamy has no credible evidence to support a favourable finding under section 9A.

1. I accept that the condition in Mr Ramasamy’s upper back was a disease and that he only has to establish that his employment was a substantial contributing factor to the “aggravation, acceleration, exacerbation or deterioration” (section 4(b)(ii)) (‘aggravation’) of that disease and not to the disease process overall (per Shillingsworth and Cant).  I also accept that there is an aggravation of a disease if it is made “more grave, more grievous or more serious in its effects upon the patient” (per Semlitch). For the reasons set out below, however, I do not accept that Mr Ramasamy suffered a frank injury to his upper back on 5 February 2002, or, if he did, that he suffered an aggravation injury within the meaning of sections 4(b)(ii) and 16 of the 1987 Act.

1. I find that Mr Ramasamy injured his lower back on 5 February 2002.  That is consistent with his own evidence that he felt a sharp pain in his lower back when he lifted the bag at work on that day.  His evidence that he had a niggling pain over his “entire back” is not confirmed by any other source and is inconsistent with Dr Abraham’s notes, his medical certificate of 19 February 2002, and his report of 6 August 2002.

1. I have carefully considered Mr Field’s evidence, which suggests that Mr Ramasamy may have injured his upper back on his right hand side on 5 February 2002.  However, as the Initial Notification Form is not signed, I have doubts as to when Mr Field completed that document.  I also have doubts as to when Mr Field completed the Supervisor’s Report of Injury form.  This form is signed and dated 6 February 2002, but it refers to the worker having resumed work on Wednesday 13 February 2002.  This suggests that the form may not have been completed until a date after 13 February 2002.  Mr Hickey submitted that the date of 13 February 2002 is consistent with Mr Ramasamy having been certified unfit for one week, as Dr Abraham’s notes for 6 February 2002 suggest.  However, the document clearly states that Mr Ramasamy had resumed work, not that ‘it was expected he would resume work on 13 February 2002’.  I therefore do not accept Mr Hickey’s submission.

1. The forms completed by Mr Field are not consistent with Mr Ramasamy’s evidence that he injured his lower back with a niggling in the whole of his spine, or with the entry in Dr Abraham’s clinical notes for 6 February 2002.  The forms refer to an injury to the right hand side of the upper back.  This is inconsistent with the entry in Dr Abraham’s notes on 19 February 2002, which refer to Mr Ramasamy complaining of pain in his left scapula area.  Precisely when the left scapula pain started is unclear, though I note Dr Abraham’s report of 6 August 2002 suggests that it started later in the week of 6 February 2002.  Precisely when Dr Abraham took this history is unclear.

1. Dr Abraham’s diagnosis of a soft tissue lower back injury is repeated in clear terms in his WorkCover certificate of 19 February 2002 and in his report of 6 August 2002.  It is largely consistent with Mr Ramasamy’s evidence that he felt a sharp pain in his lower back.  Having regard to the whole of the evidence, I believe that Dr Abraham’s reference to Mr Ramasamy having sustained a soft tissue lower back injury is more likely to be an accurate description of both the location and nature of Mr Ramasamy’s injury, and I accept it in preference to the evidence in the forms completed by Mr Field.  It follows that I do not accept that Mr Ramasamy injured his upper back at work on 5 February 2002.

1. This finding undermines Dr Packham’s evidence, which is based on an incorrect history that Mr Ramasamy felt “sudden back pain in the thoracic area” while lifting at work in February 2002 and that his pain increased and became constant.  He added that a musculoskeletal strain was diagnosed and the pain increased and became constant and severe.  He was correct that a musculoskeletal strain was diagnosed, but it was a strain to the lower back only.  That pain resolved and in a certificate dated 19 February 2002, Dr Abraham declared Mr Ramasamy fit for work from 15 February 2002.  Dr Packham’s error significantly reduces the weight to be attached to his opinion because it is based on the incorrect assumption that Mr Ramasamy’s “initial symptoms [in the upper back] were precipitated by lifting at work” (Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’). 

1. Even if Dr Packham’s history of an injury to the upper back was correct his opinion is of limited, if any, probative value, as he has not explained how it is that a strain to the thoracic spine “aggravated Mr Ramasamy’s problem”.  This statement is therefore no more than a bare ipse dixit unsupported by any reasoning or explanation (see Makita; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 5 DDCR 271 (‘Hevi Lift’); and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 42 (‘Edmonds’)). 

1. The omission of such an explanation can sometimes be overcome by the use of “commonsense” in the evaluation of evidence and the “sequence of events” (Hevi Lift at [90]). However, the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within “the realm of common knowledge and experience” (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her “commonsense” to conclude that the findings on CT scan resulted from a strain that occurred nearly three months earlier. Nor does “commonsense” indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease Mr Ramasamy suffered.

1. The evidence is strongly against drawing such a “commonsense” conclusion in the present case.  Not only did Dr Abraham not have a history of an injury to the thoracic spine, he specifically noted on 19 February 2002, pain in the left scapula area (with a reference to a 12 year old fracture from a motorbike accident) and “no spinal tenderness”.  The subsequent development of symptoms in the upper back is explained by the presence of the pathology revealed on 26 April 2002, not by the events at work on 5 February 2002.  There is no persuasive evidence, and I do not accept, that the left scapula symptoms Mr Ramasamy experienced in February and March 2002 were evidence that the symptoms of his disease, as opposed to the disease itself, had been made more serious as a result of the work incident on 5 February 2002.

1. Mr Ramasamy also relies on evidence from Dr Guirgis, who took a history that Mr Ramasamy “felt sharp snapping pain in his lower back” while lifting at work on 5 February 2002.  This history is consistent with Dr Abraham’s history and his referral note to Dr Guirgis.  The referral note added that the pain “later migrated” to the upper back.  How much later is not recorded by Dr Abraham.  Dr Guirgis did not record when the upper back pain commenced, but noted that as time passed the pain in the “upper half of his back gradually and steadily worsened and on 26 March 2002, he developed another acute episode which forced him off work”.  There is no evidence of an acute episode occurring on 26 March 2002, but the history of Mr Ramasamy’s condition deteriorating at or about that time is consistent with his own statement that he felt sick and had a fever from his pain on the evening of 25 March 2002 and finished his shift in the early hours of 26 March 2002 (Mr Ramasamy’s statement, paragraph 20).

1. There is some ambiguity about Dr Guirgis’ conclusion (see [39] above), namely, whether he concluded that the fracture resulted from a strain to the upper back on 5 February 2002, or from the ongoing granulomatous inflammatory process.  Mr Hickey argues that the doctor concluded that the pathological fracture of the thoracic vertebra resulted from the strain on 5 February 2002.  Assuming that to be the case, there are two difficulties with Dr Guirgis’ conclusion.  First, the assumption that the incident on 5 February 2002 caused a musculo-ligamentous strain of the upper thoracic area is incorrect.  Mr Ramasamy did not injure his upper thoracic spine on 5 February 2002.  Second, as with Dr Packham, even if it is accepted that Mr Ramasamy suffered a strain to his upper back on 5 February 2002, Dr Guirgis provides no explanation as to how the fracture revealed in a scan in April 2002 resulted from such a strain.  As a result, his opinion is also no more that a bare ipse dixit and I do not accept it (see Makita; Hevi Lift and Edmonds). 

1. So far as the aggravation injury is concerned, Dr Guirgis expresses no opinion that the incident on 5 February 2002 caused an aggravation of a disease. 

1. Mr Ramasamy also relies on Dr Bencsik’s evidence.  His history did not distinguish between pain in the upper back or lower back, but merely recorded that Mr Ramasamy was aware of “back pain” when he lifted a plastic liner at work on 5 February 2002.  Dr Bencsik added that “day-by-day” the back pain became much worse and on returning to his general practitioner Mr Ramasamy was referred for x-rays, which showed a fracture at T3.  That is not an accurate summary of the history.  Mr Ramasamy’s lower back pain recovered.  He later developed upper back pain, but exactly when is unclear. 

1. Dr Bencsik then answered specific questions from RailCorp (see [46] and [47] above).  His answer to the question about the connection between the injury and the diagnosis of tuberculosis is essentially unresponsive and, in any event, unhelpful to Mr Ramasamy.  He stated that the “weakening of the T3 by this granuloma has precipitated the fracture occurring on 5 February 2002.”  First, he attributes the fracture to the weakening of T3 by the granuloma, not to the work incident on 5 February 2002.  Second, he has assumed that the fracture occurred on 5 February 2002.  That assumption is contrary to my finding that Mr Ramasamy did not injure his thoracic spine on 5 February 2002.  Third, if Mr Ramasamy did suffer an injury to his thoracic spine on 5 February 2002, he recovered sufficiently to be certified fit for normal work from 15 February 2002 and I accept Dr Kafataris’ evidence that the certification that Mr Ramasamy was fit for his normal work within two weeks of 5 February 2002 was “simply not consistent with healing times for spinal fractures”.  In other words, if, contrary to my finding, Mr Ramasamy suffered an injury to his thoracic spine on 5 February 2002, it was no more than a soft tissue injury.

1. RailCorp then asked Dr Bencsik whether the tuberculosis has any relationship, by way of causation, to the injury on 5 February 2002 or the nature of his employment.  The doctor’s response is ambiguous, but again wrongly assumes that the fracture occurred on 5 February 2002.  He said that the granulomatous lesion has a direct relationship to the initial injury causing a T3 fracture on 5 February 2002, and “with the degree of pain that he would have sustained it was clearly the primary cause for his fracture”.  There was nothing notable about the “degree of pain” Mr Ramasamy experienced on 5 February 2002.  In his claim form, Mr Ramasamy described the pain as “normal pain”.  More importantly, the pain was recorded by Dr Abraham to have been in the lower back, not the thoracic spine.  Therefore, Dr Bencsik’s opinion does not assist Mr Ramasamy’s case.

1. Mr Hickey relies on Dr Bencsik’s supplementary report of 2 May 2008 (dealing with the claim for whole person impairment) to explain the ambiguities in the doctor’s main report.  In the supplementary report, Dr Bencsik was asked to provide an assessment of Mr Ramasamy’s whole person impairment “resulting from injury 5 February 2002”.  The doctor assessed Mr Ramasamy to have an 18% whole person impairment and added:

“It is clear that a very significant part of this man’s injury is due to a pre-existing granulomatous condition of T3 and to this end I would apportion one half of his impairment to the pre-existing condition so that the whole person impairment from the injury of 5 February 2002 would be 9% whole person impairment.”

1. I do not believe this additional evidence overcomes the shortcomings in the doctor’s main report.  His opinion is based on clearly incorrect assumptions about the nature of the initial injury, when the fracture occurred, and the nature and location of the pain on 5 February 2002.  I do not accept it.

1. I think that Dr Abraham accurately summarised the situation in his report of 6 August 2002, where he concluded that Mr Ramasamy suffered a soft tissue injury to his lower back on 5 February 2002.  He also thought that Mr Ramasamy suffered a fracture of his third thoracic vertebra “the cause of which is unclear,” though he did not say when the fracture occurred.  Dr Kafataris speculated that the pathological fracture occurred during an innocuous incident at home, but there is no evidence to support that view.  There is, however, some evidence (in Mr Ramasamy’s own statement) to support Dr Guirgis’ history that Mr Ramasamy “developed another acute episode” on 26 March 2002 (referred to as 25 March 2002 in Mr Ramasamy’s statement).  It is not suggested that that episode was the result of a work event or that it was triggered by a specific incident and the only reasonable inference is that it was spontaneous.  The unexplained deterioration in Mr Ramasamy’s condition on 25 or 26 March 2002 further undermines any connection between the incident on 5 February 2002 and the pathology revealed on 26 April 2002 and lends weight to Dr Kafataris’ opinion, which I accept, that Mr Ramasamy sustained a simple strain to his lumbar spine at work and then sustained “the precipitating injury for his thoracic fracture outside the workplace”.

1. I note Mr Hickey’s submission that in the absence of an explanation as to why RailCorp has not tendered any report from Dr Stephen, it should be inferred that that doctor does not advance its case.  I draw that conclusion (Jones v Dunkel (1959) 101 CLR 298). Such a conclusion does not, however, overcome the shortcomings in Mr Ramasamy’s case.

1. The above analysis leads inevitably to the conclusion that Mr Ramasamy has not made out his case, either on the basis of a frank injury to the thoracic spine, or an aggravation injury under sections 4(b)(ii) and 16 of the 1987 Act.

CONCLUSION

1. Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in finding that Mr Ramasamy injured his upper spine on 5 February 2002 and the true and correct position is that he injured his lower back only on that day and that he fully recovered from that injury by 15 February 2002. In the alternative, if Mr Ramasamy did suffer an injury to his upper back on 5 February 2002, it was no more than a strain and I am not satisfied that the pathology revealed in the CT scan on 26 April 2002 resulted from that injury, or that the injury caused an aggravation, acceleration, exacerbation or deterioration of any disease. It follows from this conclusion that even if RailCorp had not been permitted to dispute injury to the upper back, the end result would be the same. There will be an award for the respondent.

DECISION

1. For the reasons given in this decision, the Arbitrator’s determination of 17 November 2008 is confirmed.

COSTS

1. Each party is to pay his or its own costs of the appeal.

Bill Roche
Acting President

16 April 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE