Riley v Vision Pools Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Riley v Vision Pools Pty Limited [2022] NSWPIC 453
APPLICANT:	Jasson Riley
RESPONDENT:	Vision Pools Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	11 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; respondent accepts liability for cervical spine but disputes injury to thoracic spine and right shoulder; Held — the applicant suffered injury to each of the claimed body parts which all demonstrated clear pathological change post-injury consistent with the applicant’s complaints post-injury and the treating medical material; the respondent’s medical expert did not specifically rule out injury to the right shoulder or thoracic spine; the fact his report focused on the cervical spine injury is not a sufficient basis to draw an inference that his opinion rules out injury to the other body parts; matter remitted to the President for referral to a Medical Assessor to assess permanent impairment to the claimed body systems.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his cervical spine, thoracic spine and right upper extremity (shoulder) in the course of his employment with the respondent on 26 February 2019. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: a) Date of injury: 26 February 2019 b) Body systems referred: cervical spine, thoracic spine, and right upper extremity (shoulder) c) Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

Jasson Riley (the applicant) began working as a labourer and pool builder for Vision Pools Pty Limited (the respondent) since approximately 2016. The work was heavy, repetitive and the applicant usually worked between 50 and 55 hours per week.
On 26 February 2019, the applicant was required to breakdown and remove heavy blocks from a retaining wall. The blocks weighed between 20 and 100 kg. The applicant performed this work for several hours and was moving a block weighing approximately 80 kg to his vehicle when it began to tip towards him. The applicant reacted by turning and forcefully pushing the block away from him with as much force as he could muster with his right hand. In doing so, the applicant states he suffered immediate pain in his nek, back and right shoulder.
The applicant brings these proceedings seeking permanent impairment compensation for frank injuries suffered to his cervical spine, thoracic spine and right upper extremity (shoulder). The respondent accepts liability with respect to the cervical spine, but denies the applicant suffered injury to his shoulder or thoracic spine.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the applicant suffered injury to his right shoulder and thoracic spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing before me on 3 August 2022. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr Goodridge of counsel instructed by Mr McKean appeared for the applicant. Mr Morgan of counsel instructed by Ms Tancred appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered injury to his thoracic spine and/ or right shoulder

The applicant has the onus of establishing that he suffered an injury to the body parts in issue.
It is apparent from a long line of authority that “injury” requires not only an injurious event but relevant identifiable change in the pathology of the affected body part: see for example Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro), where a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138]).” (at [60])
The mechanism of the injurious event the subject of these proceedings is not in issue. In or about 2016, the applicant commenced employment with the respondent as a labourer and pool builder. It was plainly heavy and physically demanding work, which the applicant carried out for between 50 to 55 hours per week on average. The respondent is a company which specialises in building concrete pools in the Newcastle region. According to the applicant, and this evidence is not seriously challenged, he carried out these duties without incident or injury until 26 February 2019.
On that day, the applicant was required to break down and remove heavy concrete blocks from a retaining wall. This involved lifting and manoeuvring blocks which weighed between 20 and 100 kg on a repetitive basis for several hours.
During the course of his employment, the applicant was pulling a large concrete block which weighed approximately 80 kg towards his utility vehicle when the block almost toppled over onto him. The applicant reacted by pushing the concrete block away to avoid being crushed. In doing so, he used his right hand with as much force as he could muster and felt what is described as a sharp sensation of pain over the right side of his neck, thoracic spine and his right shoulder region. The applicant recalled that he had to sit down for several minutes before subsequently finishing his work tasks for the day and driving to the respondent’s office where he informally notified the supervisor of the incident.
According to the applicant, he continued to work for the next few weeks, but had ongoing symptoms in his neck, thoracic spine and right shoulder. Relevantly, he also complained of radiation of pain down his right arm. In or about mid-March 2019, the applicant completed an incident report form in relation to the injury at issue and eventually sought medical attention in early April 2019 from Dr Sutton, general practitioner.
From early April 2019, the applicant was referred for various radiological investigations. On
10 April 2019, he was referred for a CT scan of his thoracic spine. That scan was reported as demonstrating a T11 right superior articular facet fracture, minimally displaced on the right side. For the respondent, Mr Morgan submitted this was an incidental finding of a pre-existing problem in the applicant’s back and impressed upon the Commission the findings of treating surgeon, Dr Ferch, who doubted a fracture was shown.
That opinion and submission would come as a surprise to the applicant, who had complained of acute pain in the very region where the fracture was demonstrated on the scan, and to the applicant’s general practitioner who noted findings completely consistent with a fracture in the thoracic spine. Moreover, the respondent’s own independent medical examiner (IME)
Dr Nair also reported a fracture of the thoracic spine, however, he remained of the view that the applicant’s injury was purely to the cervical spine.
The respondent submitted that the findings in the applicant’s thoracic spine were no more than incidental. However, that submission is not, in my view, consistent with the medical evidence. There is no suggestion the applicant suffered any thoracic spine pain before the injury at issue, despite carrying out repetitive and heavy work over the course of several years with the respondent. Moreover, the CT scan of the thoracic spine is reported as demonstrating a minimally displaced fracture at T11, which was the very site where the applicant was complaining of acute and distressing pain following the injurious event.
In considering matters of causation in a workers’ compensation context, it is important to examine the lay and medical evidence to determine whether there is an unbroken causal chain between the alleged injurious event and the symptoms complained of. That is, what is required is a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In this matter, there is a clear history of no symptomology in the thoracic spine at all before the injurious event in February 2019, after which there is a consistent pattern of thoracic spine pain complained of by the applicant, which is in turn borne out by the findings of the relevant doctors together with the radiological investigations showing pathological change by way of fractured vertebra. In his statement, the applicant’s uncontested evidence was:
“5. The insurance company have however decided to dispute that I sustained any injury to my thoracic spine or right shoulder. In that regard I wish to challenge their decision to decline my thoracic spine and my right shoulder.
6. I confirm that I complained of both of these body parts immediately upon seeking
medical treatment.
7. After the incident which caused my injury on 26 February 2019 I had immediate onset of pain in my thoracic spine around my mid back region, pain in my right shoulder region as well as pain in my neck.
8. I did not cease work as a result of the injury indeed I continued to work on for a number of weeks with the difficulties I had. I did not seek an immediate medical consultation as I thought that it was just a strain and that it would improve in the coming weeks. Accordingly, I continued to work without seeking medical consultation up until 9 April 2019.
9. By that time the pain from my injuries including my back and right shoulder had not improved and if anything were deteriorating as a result of me continuing my work
related activities without respite.”
Even if I accepted, as Mr Morgan submitted, that the fracture at the T11 vertebra is congenital and incidental to the event at issue, it was plainly asymptomatic before the incident and was rendered symptomatic by it. I do not, however, on balance accept that the T11 fracture was pre-existing. Rather, in my view, it was caused by the injurious incident at issue, following which there has been a consistent pattern of pain and discomfort to the applicant in the very region where the radiological investigations have demonstrated the presence of the relevant fracture.
A CT scan of the thoracic spine taken on 10 April 2019 noted the applicant’s point of maximum pain was the area corresponding with the posterior T11 vertebral body, and that:
“Corresponding to this, there appears to be a small avulsion fracture or unfused secondary ossifications that are involving the right superior T11 articular facet. Either could be symptomatic and relevant to the current clinical presentation…. In the clinical context, it appears likely there is a tiny minimally displaced fracture involving the right T11 superior articular facet.”
That finding was supported by the applicant’s general practitioner, who adopted it in his referrals to various specialists.
An MRI taken on 20 June 2021 demonstrated the continued presence of a small central disc protrusion at T8-T9, indenting the thecal sac with contact upon the cord. It is therefore apparent that there has been pathological change to the applicant’s thoracic spine consistent with the mechanism of injury complained of, and this only reinforces his claim of having suffered a frank injury to that body system on the date of injury in issue which has continued to cause him pain since.
The various radiological findings and complaints of thoracic spine pain are consistent with the symptomology recorded by the applicant’s IME Dr Dias, who noted in his report dated
18 November 2021:
“Mr Riley continues to struggle with ongoing symptoms of pain, stiffness and discomfort affecting his neck, right shoulder and thoracic spine, on a daily consistent basis. His symptoms of neck and thoracic spine pain are right-sided and radiate throughout his right shoulder girdle and right parascapular region.”
Dr Dias made the following findings on examination of the thoracic spine:
“Mr Riley's thoracic spine was normal to inspection. He was tender to palpation in the midline and in the right thoracic spine paraspinal musculature from the level of T3 to T10 with tenderness to palpation extending laterally to the right parascapular musculature. There was moderate muscular guarding noted on palpation of these regions. There was no evidence of muscular spasm noted. Mr Riley was able to perform lateral rotation of his torso to the right side to one half of the normal range and to the left side to three quarters of the normal range before being limited by pain and discomfort in the thoracic spinal region. There was no objective clinical evidence of thoracic radiculopathy noted on neurological examination on today's assessment.”
It is apparent from Dr Dias’ findings that the applicant’s thoracic symptoms had improved since the time of injury, however, they had not resolved. He diagnosed chronic thoracic spine pain, stiffness and discomfort, secondary to an acute musculoligamentous strain.
The respondent’s IME Dr Nair primarily deals with the applicant’s cervical spine injury, which is not in issue. He does, however, refer to the CT scan of the thoracic spine as “inconclusive in terms of a T11 fracture”. This is despite Dr Nair’s second report noting the thoracic spine CT of 10 April 2019 demonstrated the minimally displaced fracture to the T11 superior articular facet, a finding he otherwise does not deal with.
In the context of a dispute concerning injury to the thoracic spine, that in my opinion is a significant omission on Dr Nair’s part, and to the extent his report is relied on to deny liability for a thoracic spine injury, I do not prefer it to the views of Dr Dias, supported as they are by the treating general practitioner and the radiological evidence.
On balance, I am of the view the applicant suffered an injury to the thoracic spine. His acute complaints of pain immediately following the accident were in the area directly correlating with what is described in the CT scan of April 2019 as a T11 avulsion fracture. Moreover, there is ongoing pathology in the thoracic spine – a region asymptomatic before the injury at issue – in the MRI of June 2021. The applicant’s complaints are consistent with the radiology, and with the notes taken by his treating general practitioner. On a commonsense basis, evaluating all the lay and medical evidence, I am comfortably satisfied on the balance of probabilities that the thoracic spine was injured in the incident at issue. In my view, the evidence regarding the thoracic spine is overwhelming, and there will be a finding that the applicant suffered an injury to his thoracic spine on the day in question, and the thoracic spine will be referred to a Medical Assessor for assessment to determine any whole person impairment arising from that injury.
In relation to the right shoulder, the applicant was referred for an ultrasound on 17 May 2019. At this point, it is pertinent to point out that Dr Dias, IME for the applicant, noted the ultrasound as having taken place on 17 March 2019. That is plainly a typographical error. The scan in question is contained within the material and is dated 17 May 2019.
The right shoulder ultrasound demonstrated the following:
"There is a small intrasubstance tear/delamination involving the mid-supraspinatus fibres, measuring 5x6x1 mm.
The remaining of the supraspinatus is intact and some are graphically normal.
The remaining rotator cuff tendons are intact and some are graphically normal.
There is of beginning the subacromial/subdeltoid bursa, but there is no definite evidence of impingement on abduction.
Comment:
Supra intrasubstance tear/delamination involving the mid-supraspinatus tendon. Mild subacromial bursitis, but no definite evidence of impingement."
On 22 June 2021, the applicant underwent an MRI of his right shoulder. That was against the background of ongoing right scapular pain. On that occasion, the acromioclavicular joint was reported as demonstrating a mild synovitis, non-specific in nature. The bursa and rotator cuff were normal, though the scapular was incompletely visualised on the scan.
Mr Morgan submitted this demonstrated there was no pathological change to the right shoulder as a result of the injury at issue.
I reject that submission, noting there was mild synovitis in the acromioclavicular joint against the background of consistent right scapular pain since the injury at issue. Moreover, the MRI of June 2021 was incomplete in that it did not visualise the entirety of the applicant’s scapula, the very region where he had reported suffering right shoulder pain.
The contents of the scan from June 2021 must be placed in context by reference to the other medical material in the case. Firstly, there are consistent complaints post-injury of right shoulder pain. Also, while I accept that Mr Morgan’s submission that much of the applicant’s treatment has focused on the cervical spine and symptoms of radiculopathy, that does not in itself exclude the presence of a right shoulder injury.
The findings of right shoulder pathology in the 2019 scan tie in with the conclusions of Dr Dias, IME. On examination of the right shoulder, Dr Dias found the following:
“Mr Riley’s right shoulder was normal with inspection. It was mildly tender to palpation over the anterior and superior aspects of the right glenohumeral joint on today’s assessment. Mr Riley was able to perform abduction of his right shoulder to the 90°, flexion of his right shoulder to the 90° and internal rotation of his right shoulder to the 30° before being wounded by pain and discomfort in his right shoulder region. He had a full range of movement of his right shoulder in the planes of external rotation, adduction and extension on today’s assessment.”
Dr Dias, having regard to the 2019 scan (though not the 2021 MRI which was not before him) and after undertaking his examination, found the applicant suffered from a chronic right shoulder impingement syndrome, secondary to an acute partial thickness supraspinatus tendon tear with associated chronic subacromial bursitis.
For his part, Dr Nair, IME for the respondent provided two reports in 2020 and 2022 respectively. In his first report, Dr Nair’s history was of the applicant having injured his sub axial cervical spine and right shoulder, with pain in the cervical spine and in the right clavicle. Dr Nair also reported pain in the medial aspect of the right arm and the lateral aspect of the right forearm radiating to the right thumb. That pain was provoked by movement of the cervical spine.

Mr Morgan submitted the applicant’s symptoms in his right shoulder and arm were in fact caused by the cervical spine injury. Dr Nair’s view was that the applicant suffered C6 radiculopathy consistent with the injury complained of. He did not make any comment in relation to the applicant’s right shoulder, other than noting the pain in it.
As Mr Goodridge submitted, and I accept, it is not for the Commission to draw an inference that Dr Nair’s lack of comment about the presence of a right shoulder injury means he has ruled it out. He does not specifically do so.
Whilst it is true that pain in the applicant’s forearm radiating into his hand is potentially consistent with radiculopathy, Dr Nair really provides no substantive opinion in either of his reports as to the presence or otherwise of the right shoulder injury, other than commenting upon it in his history of injury. Dr Nair’s substantive findings really only deal with the cervical spine, and do not even address the thoracic spine or right shoulder injuries. That is despite Dr Nair taking a history of injury to the cervical spine and right shoulder from the applicant on two separate occasions and noting the findings of the radiological investigations, including the thoracic spine CT scan which showed a fracture at T11, and the right shoulder ultrasound which showed a supraspinatus tear.
The treating medical evidence in this matter demonstrates a clear and consistent pattern of complaint of pain and restriction to the right shoulder and to the thoracic spine since the date of injury. There are myriad clinical entries demonstrating that this is so. I do not propose to repeat them all in these reasons.
Suffice to say, the consistent complaints of pain and restriction in the right shoulder and thoracic spine, combined with radiological investigation showing relevant pathological change in each of those body systems contemporaneous to the date of injury and the applicant’s uncontested evidence as to his ongoing pain and restrictions and the mechanism of injury lead me to find that the overwhelming preponderance of the evidence in this matter supports a finding of injury to both the right shoulder and to the thoracic spine.
This is not a matter where the applicant makes diffuse complaints of pain some months or even years after an alleged injury to body systems otherwise unreported. It is also not a matter whether the applicant’s findings on radiological investigation are either unremarkable or demonstrate no relevant change. The radiology in this matter is overwhelmingly in favour of a finding that the applicant suffered injury to the disputed body systems, as is the balance of the clinical material. It is, to some extent, unnecessary for me to make a finding rejecting Dr Nair’s opinion with respect to the thoracic spine and right shoulder, as he actually made no express findings in relation to them.
An omission on the part of an IME from referring to claimed body systems is not the equivalent of the provision of an opinion discounting injury to those body parts. Dr Nair does not even go so far as to provide even a trite, broad-brush dismissal of the allegedly affected body systems. Rather, all he does is report the findings of the radiological investigations and the fact the applicant complained of pain in those body parts, before making no further mention of them. That is plainly inadequate as a reliable expert opinion on the contentious body systems.
On balance, I prefer the views of Dr Dias, supported as they are by the clinical records, physiotherapy records and the applicant’s own lay evidence, and find the applicant suffered injuries as alleged.

SUMMARY

For the above reasons, there will be findings and orders as set out on page 1 of the Certificate of Determination that the applicant suffered injury to the cervical spine, thoracic spine and right upper extremity (shoulder) in the course of his employment with the respondent on 26 February 2019.

[2022] NSWPIC 453

11 August 2022