Risteski v MKD Transcorp Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Risteski v MKD Transcorp Pty Ltd [2023] NSWPIC 334
APPLICANT:	Petar Risteski
RESPONDENT:	MKD Transcorp Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	11 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment compensation; accepted right shoulder injury as result of frank incident; accepted left shoulder consequential condition; whether applicant suffered injury or consequential condition to his cervical spine; whether applicant suffered consequential condition to left hip; Held – the applicant has not discharged the onus of proof in establishing he suffered injury to his cervical spine; either in the frank incident which caused his right shoulder injury and left shoulder consequential condition; additionally the applicant has failed to discharge the onus of proof in establishing the nature and conditions of his employment have caused an injury to his cervical spine; the applicant suffered a consequential condition to his cervical spine as a result of the prolonged wearing of a sling on his right shoulder after surgery; the applicant suffered a consequential condition to his left hip as a result of the right shoulder injury; when he was placed on his left side in order for the right shoulder surgery to be carried out; all claimed body systems are to be subject of referral for medical assessment.
determinations made:	The Commission determines: 1. The applicant suffered an injury to his right shoulder in the course of his employment with the respondent on 7 October 2016. 2. As a result of the injury referred to in [1] above, the applicant suffered consequential conditions to his left shoulder, cervical spine and left hip. 3. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses incurred as a result of his injury and consequential conditions. 4. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 7 October 2016. Body systems referred: right upper extremity (shoulder), left upper extremity (shoulder), cervical spine, and left lower extremity (hip). Method of assessment: whole person impairment. 5. 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 Dispute; (c) Reply, and (d) applicant’s Application to Admit Late Documents dated 1 June 2023.

STATEMENT OF REASONS

BACKGROUND

Petar Risteski (the applicant) suffered an accepted right shoulder injury in the course of his employment with the respondent MKD Transcorp Pty Ltd on 7 October 2016. There is no issue the applicant also suffered a consequential left shoulder condition as a result of that injury. Each of these body systems will be referred for medical assessment.
The applicant also alleges he suffered an injury to his cervical spine by way of aggravation as a result of the nature and conditions of his employment between 2012 and 8 August 2018 with a deemed date of injury of 14 August 2019, being the date of the permanent injury claim in relation to the cervical spine. Further and in the alternative, the applicant alleges his cervical spine has developed a consequential condition as a result of wearing a sling following right shoulder surgery in 2017, which was undertaken as a result of the accepted injury which occurred on 7 October 2016.
Lastly, the applicant also claims a consequential condition with respect to his left hip, said to have arisen as a result of the posture adopted by him while undergoing right shoulder surgery in March 2017.
The respondent denies liability with respect to the alleged cervical spine and left hip injuries/consequential conditions.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered injury or consequential condition to his cervical spine, and
(b) whether the applicant suffered a consequential condition to his left hip.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 10 July 2023. At the hearing, the applicant was represented by Mr Hickey of counsel instructed by Mr Lamb. The respondent was represented by Mr Doak of counsel instructed by Mr Belau.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application);
(b)    Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents (AALD) and attached documents dated 1 June 2023.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered injury or consequential condition to the cervical spine

The applicant claims a compensable condition to his cervical spine on alternate bases, namely an injury by way of aggravation of underlying degenerative changes (s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act)) and/or a consequential condition caused by the prolonged wearing of a sling for approximately six to eight weeks after undergoing right shoulder surgery on 10 March 2017.
The circumstances of the frank injury on 7 October 2016 are not in issue. In this initial statement, the applicant describes the injury as follows:
“14. On the 07/10/2016 I went to the Brisbane Markets as per my next job. I got the details for my delivery and reversed into the dock.
15. I then began my preparations within the trailer. I inserted two bars on each row. As I got to the top row I lent on the right-side wall of the trailer in order to put the bar in tighter. At this moment I felt a click in my right shoulder and felt a lot of pain. I dropped the bar and went out of the trailer holding my right shoulder.
16. At this moment, another truck driver, Perica Kotevski who also works for the same company I do, saw me. Perica asked me if I was alright. I told him that I had hurt my arm while putting the bar on the top row. Perica then completed the rest of my trailer so I was ready to go.
17. Before driving I consumed two nurofen tablets for the pain I was feeling within my right arm. The tablets helped a bit. I drove but I was using my left arm mainly.”
There is no suggestion the applicant made any complaint of neck injury after the incident on 7 October 2016. The claim for injury to the cervical spine in this matter relates to the nature and conditions of the applicant’s employment, and to an alleged consequential condition.
There was no contest to the proposition that if both an injury and a consequential condition were found, the impairments arising from both could be aggregated in accordance with the second category of cases involving subsequent injuries referred to by Malcolm J in State Government Insurance Commission v Oakley (1990) 10 MVR 570; see also Ozcan v Macarthur Disability Services Limited [2021] NSWCA 56.
Dealing first with the question of whether there was an injury to the cervical spine caused by the applicant’s nature and conditions of employment.
Mr Hickey relied on the applicant's further statement evidence which set out the nature and conditions of his employment. There is no realistic contest to this aspect of the applicant's evidence. In a supplementary statement dated 17 August 2022, the applicant said:
“3.    With the driving I was required to do, I had to drive 11 hours a day, with a one-hour break in between. I did these five days a week.
4.      One of my jobs involved me picking up and delivering parcels, goods and supplies from the IKEA warehouse in Chipping Norton.
5.      The trailer is loaded by the IKEA staff. I had to back my truck up into a turntable so that my truck could be hooked up to the trailer. While I am backing my truck, I am moving my neck left, right, up and down to look at all of the mirrors in my truck and the sides of my truck so I can make sure that I lined my truck up properly to the turntable. 6. Once I parked my truck, I did not have to pull the hand brake with my left arm. I then exit the truck and go to secure the trailer.
7.      To secure the trailer, I used my right arm to pull the handles and wind the legs of the trailer up.
8.      One of my other jobs involved me driving to Brisbane and back in my truck. I drove to Brisbane from Chipping Norton. I was on shift for 12 hours at a time. I had to drive for 11 hours and was given a one-hour break. I sat in my truck for those 11 hours. I had to keep my neck and head straight for those 11 hours, occasionally looking to my left, right to look at my mirrors and blind spots.
9.      I did two trips to Brisbane and back per week.”
The applicant also stated he began to develop soreness in his neck after sleeping overnight in his truck on a regular basis.
Although the respondent attacked the applicant's statement evidence on terms discussed later in these reasons, there was no evidence put forward by it to challenge the applicant's version of the nature and conditions of his employment. I accept the applicant’s evidence surrounding those nature and conditions.
In support of the submission of injury to the cervical spine, Mr Hickey referred to the CT scan of the applicant's neck taken on 12 February 2018. That scan revealed the following significant pathology:
“C2/3, no posterior disc bulge. No neural exiting foraminal narrowing. There is a moderate left sided facet joint arthritis. The right facet joint outlines normally.
C3/4, there is mild posterior disc bulge/osteophyte complex indenting on the faecal sac but no canal stenosis. There is marked narrowing of the right neural exiting foramen impinging on the right exiting C4 nerve root and mild narrowing of the left neural exiting foramen which may compromise the left exiting C4 nerve root. The right facet joint is fused. There is mild facet joint arthritis on the left side.
C3/5, there is a mild posterior disc bulge/osteophyte complex in denting on the faecal sac but no canal stenosis. There is marked narrowing of the right neural exiting foramen impinging on the right exiting C5 nerve root. The left neural exiting foramen outlines normally. There is severe right side of their mild left sided facet joint arthritis.
C5/6, there is mild posterior disc bulge more prominent on the left side, indenting on the faecal sac but no canal stenosis. There is mild narrowing of the right neural exiting foramen which may compromise the right exiting C6 nerve root. The left neural exiting foramen outlines normally. There is mild to moderate bilateral facet joint arthritis.
C6/7, there is a minimal posterior disc bulge but no canal stenosis. There is mild to moderate narrowing of the right neural exiting foramen impinging on the right exiting C7 nerve root. The left neural exiting foramen outlines normally. There is a moderately extensive right sided than mild left-sided facet joint arthritis.”
The applicant relied on the reports of Dr Khong, Independent Medical Examiner (IME). In his first report, Dr Khong took an accurate history of the injury on 7 October 2016 and referred to the CT scan of 12 February 2018. Dr Khong concluded the consistent use by the applicant of a sling after right shoulder surgery led to an exacerbation of the degenerative changes in his cervical spine. In other words, he supported a finding of consequential condition.
In a supplementary report dated 9 September 2022, Dr Khong referred to the applicant's statement evidence and found that in addition to the consequential condition caused by wearing the post-surgery sling, the nature and conditions of the applicant's work also aggravated the degenerative changes in his cervical spine.
Dr Khong sought to refute the views of the respondent's IME Dr Powell, who had said there was no complaint of neck injury after the injurious event in 2016. Dr Khong stated that in fact the applicant had complained of neck pain in his statement. However, as Mr Doak noted, a review of the clinical material in fact demonstrates no complaint of neck pain after the frank incident on 7 October 2016.
Mr Doak submitted the applicant's history of complaint as set out in the clinical notes demonstrated a willingness to appropriately complain of work related matters when they affected him, but there was no complaint of neck pain after the October 2016 injury. Mr Doak made a point of stating the applicant is not to be criticised for complaining of matters which concerned him in the workplace, however, it was relevant that he did not do so with respect to his cervical spine.
I accept that submission. I also accept, keeping in mind Dr Khong's history that the applicant complained of neck pain after the incident in issue is incorrect, that there was no frank injury to the cervical spine in the incident of 7 October 2016.
However, that is not the end of the matter.
The applicant alleges the nature and conditions of his employment aggravated his cervical spine pathology. Such a finding requires some evidence of an aggravation caused by the applicant's employment.
It is the cause of the aggravation which is in issue, not the underlying pathology: see Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606.
Those cases and the authorities which flow from them make it clear the proper test is whether the aggravation has impacted the individual concerned. It is not necessary for a particular disease or underlying condition to pathologically be made worse. Rather, the applicant must demonstrate an increase or onset of symptomology as a result of the alleged aggravation.
In this matter, there is a paucity of evidence to support any complaint of neck symptoms in the course of the applicant's employment generally. On balance, I am not satisfied the applicant has discharged the onus of proving his employment with the respondent aggravated his neck symptoms, as there are no such complaints of these symptoms on the medical record, in contrast to other body systems of which the applicant appropriately complained after suffering injury or aggravation in the course of his employment.
Although authorities such as Mason v Demasi [2009] NSWCA 227 make it clear care should be taken in relation to histories recorded by treating practitioners, it is, as Mr Doak submitted, noteworthy the applicant did complain of other affected body systems to his general practitioner and specialists, however, there were no such complaints of neck pain until after he wore the sling for a prolonged period of time after the right shoulder surgery.
I am therefore not satisfied on balance the applicant suffered an injury to his cervical spine as a result of the nature and conditions of his employment.
I am, however, on balance satisfied he did suffer a consequential condition to the cervical spine as a result of prolonged wearing of a sling after the March 2017 shoulder surgery. On a commonsense basis, I have no difficulty accepting a causal link between the increase in the applicant's cervical spine symptoms and the additional pressure placed on his neck as a result of wearing that sling for so long, against a background of long established moderate to severe underlying cervical spine pathology.
As the authorities made clear, it is not necessary to establish a s 4 injury in order to make out a consequential condition: see Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and Moon v Conmah Pty Ltd [2009] NSWWCCPD 134.
As Dr Nabavi, IME noted in his report dated 31 May 2021:
“Constant use of a sling does not cause pathology or radiological changes. However, using the sling in the presence of degenerative disease will exacerbate the symptoms and cause neck pain because the weight of the right upper limb is pulling down on the cervical spine…
Once he had undergone shoulder surgery, the change in the biomechanics of his shoulder movement would have put excessive amounts of strain on his neck, as well as the use of the sling, which would have been pulling on the cervical spine causing the symptoms.”
I find that reasoning compelling.
There is no question the applicant underwent right shoulder surgery on 10 March 2017. On 30 April 2018, the applicant attended his general practitioner complaining of neck pain with radiculopathy, and made further complaints of such issues on 31 August 2018. These complaints of neck issues are, in my opinion, consistent with the applicant's worsening of neck symptoms as a consequence of wearing a sling for such a prolonged period after his shoulder surgery against a background of serious degenerative pathology in his cervical spine.
On a commonsense basis, having regard to the totality of the evidence, I am satisfied the applicant therefore suffered a consequential condition to his neck after the right shoulder injury and prolonged utilisation and immobilisation of his right shoulder by way of sling.
Mr Doak attacked the applicant's statement evidence, noting it had been successively compiled to incorporate an increasingly broad range of alleged causes of injury to address evidentiary issues which had arisen over the course of various proceedings which had been discontinued in the Commission. He submitted the applicant's evidence was unreliable and should be treated with caution.
I have taken on board the respondent's submissions and even allowing for some reservations concerning the applicant's evidence, on a commonsense basis, in my opinion the medical evidence is consistent with the onset of a consequential condition to the neck.
In saying I have some reservations concerning the applicant's statements and the manner in which they attribute symptoms to various allegedly injurious events, I note the applicant was not cross examined, though the respondent made it clear the evidence was the subject of challenge.
The fact of some inconsistency is not evidence of knowingly making a false statement, nor is it fatal to an applicant's case in circumstances where there is contemporaneous medical evidence which provides some support for the onset of symptoms consequent to the prolonged post-surgical wearing of the right arm sling on a background of relatively advanced pre-injury pathological change to the cervical spine.
Accordingly, in my view the applicant has made out his case for a consequential condition and the cervical spine will also be referred to a Medical Assessor for determination of the applicant's permanent impairment.

Whether the applicant suffered a consequential condition to his left hip

Mr Doak also submitted there was a lack of complaint of left hip issues. The applicant's case is he was placed onto his left side while his right shoulder was operated on, and this has caused the onset of symptoms relating to bursitis in that body system.
The respondent alleged there were very little complaints of post-surgery issues with the left hip, and that a number of complaints related to bilateral hip issues, which were not a consequence of the injury.
I do not accept that submission. The applicant was referred for a bilateral hip CT on
10 April 2017, only one month post-surgery. He then underwent a left hip ultrasound on
12 April 2017. In my view, that is plainly consistent with the applicant having symptoms in that body system. The ultrasound concluded findings consistent with those symptoms.

The following day, on 13 April 2017, the applicant underwent a CT guided left trochanteric bursa injection. The results were, according to the doctor who performed the injection, a reduction in pain from 6 out of 10 to 3 out of 10. A review of the clinical records reveals the applicant complained of left hip issues to his GP very shortly after his right shoulder surgery, on 8 April 2017, which led to the referral for radiological investigation and ultrasound, and again on 18 April 2017. Further general practitioner consultations in relation to the left hip continued up to and including November 2018.
Dr Nabavi opined in relation to the left hip:
“You make mention of bilateral hip problems but the main issue is the left hip. This pain
was felt immediately following his rotator cuff reconstruction. To perform the rotator cuff reconstruction, he would've had to be laid on the operating table on his left side and it is possible that lying onto the left greater trochanter of his hip joint has caused an inflammation in the form of trochanteric bursitis.
This has been treated with one injection of the trochanteric bursa which improved his symptoms somewhat but not completely. I therefore do believe that his trochanteric bursitis of the left hip is related to the rotator cuff repair and possibly therefore to his work injury. Unfortunately this has been an unforeseen result of his right shoulder surgery but it is not uncommon and it does not indicate any negligence or malpractice has taken place, simply that him lying on his left hip and a result of his right shoulder arthroscopy has aggravated his trochanteric bursa.
It is likely that he has a degree of trochanteric pain and gluteal enthesopathy as a result of his profession which would include heavy physical work.”
For the respondent, Dr Powell was of the view the applicant’s hip issues related to pre-existing pathology. He noted the onset of hip symptoms as follows:
“He also developed pain about the left hip region, indicating the posterior to lateral
buttock area. This also involved the right side which came on at the same time with
similar symptoms (he was advised that this was because he was in a lateral decubitus
position for the procedure).
He has had investigations in the hip region which have not shown any structural injury.
He has been managed with physiotherapy and exercise but these symptoms continue to trouble him.”
In a further report dated 23 November 2020, Dr Powell noted:
“Ultrasound of the left hip on 12 April 2017 reported thickening of the trochanteric bursa and enthesopathy change at the gluteal muscle insertion, Right hip ultrasound showed thickening of the trochanteric bursa.
Ultrasound of both hips from 12 November 2018 report did not identify any structural abnormality in the gluteal tendon insertions.
MR imaging of the right hip on 31 July 2018 identified changes of osteoarthrosis
in the hip joint including degenerative change in the acetabular labrum and articular cartilage and change in the acetabulum with some delamination, and degenerate change at the gluteal muscle insertions at the greater trochanter and that muscle origins from the ischium (hamstrings).
CT-guided injection was performed at the left trochanteric bursa on 19 April
2017…”
In relation to causation of the left hip problems, Dr Powell said:
“He has been found to have trochanteric bursa (thickening and gluteal tendonopathy. These imaging findings are part of his general degenerative disease. It is a bursal thickening being normal for age and reflect attritional loading in the region over time through normal daily activity. Bilateral nature of the imaging findings indicate that these changes are part of his general disease process. The imaging has identified early osteoarthrosis of the right hip and it is likely that similar changes would be present on the left, but this has not been imaged (there is no clinical indication that the MR imaging is required).
The patient indicates that symptoms developed following being in the lateral decubitus position for his shoulder arthroscopy resulting in trochanteric bursitis.
This is difficult to appreciate. While the patient would be in this position for his arthroscopy, this procedure is not particularly prolonged. As pressure point care is routinely carried out and the design of the operating theatre equipment, and is well known to staff, and protocols are in place in in all operating suites to avoid such occurrences, it is very unlikely that compressive bursitis would result from the procedure. It is also difficult to utilise this explanation for the patient developing simultaneous symptoms on the right side and having symmetric pre-existing
pathology.
The degenerate components of the patient's' disease about the left hip region will remain and will follow the natural history and this has not been altered by the fact that he had an arthroscopy of the right shoulder or any aspect of his perioperative care.”
On balance, I do not accept Dr Powell’s opinion. It ignores the fundamental temporal connection between the applicant being placed on his left side and undergoing surgery with the onset of left hip symptoms. As noted earlier in these reasons when discussing the consequential condition to the cervical spine, it is not necessary for employment to have caused the underlying pathology in order for the applicant to demonstrate the presence of a consequential condition. Rather, the question in this instance is whether the accepted right shoulder injury has, by virtue of the applicant’s positioning while having surgery for it, led to a condition developing in his left hip.
Adopting a commonsense approach to the causal chain in relation to the left hip, I am comfortably satisfied on the balance probabilities the applicant suffered a consequential condition to that body system as a result of his positioning during surgery, the need for which was brought about the need for which arose from the accepted right shoulder injury. There is contemporaneous complaint of the onset of left hip symptoms post-surgery, and there is no suggestion the applicant was suffering from such symptoms before the operation. As such, the treating and IME material on balance supports a finding of consequential condition to the left hip.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 334

11 July 2023