Rose v Secretary, Department of Communities and Justice
[2024] NSWPIC 416
•1 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Rose v Secretary, Department of Communities and Justice [2024] NSWPIC 416 |
| APPLICANT: | Lindsay Rose |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 1 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Permanent impairment compensation; whether applicant suffered cervical spine injury in addition to accepted lumbar spine injury and consequential obstructive sleep apnoea; applicant slipped on a set of stairs and landed heavily on his buttocks; no issue he suffered a lumbar spine injury in the fall, or that he developed a consequential respiratory condition in the nature of obstructive sleep apnoea; applicant also claims he suffered an injury to his cervical spine in the fall; respondent disputes injury to cervical spine, noting the applicant made no complaint of neck symptoms for some 18 months post-injury; Federal Broom Co Pty Ltd v Semlitch and Kelly v Western Sydney Institute NSW TAFE Commission applied; Held – the relevant inquiry in cases of alleged injury by way of aggravation is whether the injurious event was the main contributing factor to the aggravation, not to the underlying pathology; the applicant suffered an injury in the nature of an aggravation of pre-existing pathology in his cervical spine in the fall at issue; the fall at work was the main contributing factor to the aggravation of the applicant’s neck. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury to his lumbar spine and cervical spine in the course of his employment with the respondent on 25 November 2018. 2. As a result of the injury referred to in [1] above, the applicant suffered a consequential condition by way of sleep disorder. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of injury: 25 November 2018. Body systems referred: lumbar spine, cervical spine, respiratory – obstructive sleep apnoea (consequential condition). Method of assessment: whole person impairment. 4. 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; (c) Reply and attachments, and (d) applicant’s Application to Admit Late Documents and attachments dated |
STATEMENT OF REASONS
BACKGROUND
On 25 November 2018, Lindsay Rose (the applicant) was working as a security guard for the Department of Communities and Justice (the respondent) when he suffered a fall on a set of stairs in the course of his employment, which caused him to land on his buttocks.
There is no issue the applicant suffered an injury to his lumbar spine in the fall at issue, or that he developed a consequential respiratory condition in the nature of obstructive sleep apnoea. He brings a claim for permanent impairment compensation in respect of those conditions, which will be referred for medical assessment.
The applicant also alleges he suffered an injury to his cervical spine in the fall at issue. That injury is disputed by the respondent.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is whether the applicant suffered an injury or consequential condition to his cervical spine in the fall at issue, whether by way of frank injury or aggravation of an underlying condition.
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 24 July 2024. At the hearing, the applicant was represented by Mr McEnaney of counsel instructed by Mr Malai, solicitor. The respondent was represented by Ms Compton of counsel instructed by Ms Dyson, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attachments, and
(c) applicant’s Application to Admit Late Documents (AALD) and attachments dated 24 June 2024.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered an injury to his cervical spine
The applicant has the onus of proving he suffered an injury to his cervical spine. The applicant has pleaded both a frank injury and aggravation of underlying pathology to his cervical spine as a result of the fall in question. He also alleges the cervical spine condition from which he suffers is consequential to his back injury as a result of altered of posture and physiology.
In relation to the incident at issue, the applicant provided the following statement evidence:
“On 25 November 2018, whilst in the course of my duties, I was walking up the stairs, entering into work. The stairs I was walking on were wet and slippery, which caused me to fall back and land on my buttocks. As a result, I developed immediate pain throughout my back and neck and was unable to move for about 15 minutes. I left work early. I took medication and went to bed when I got home, hoping my pain and symptoms would get better. The next morning, I consulted my GP as my pain had continued to deteriorate.”
For the respondent, Ms Compton submitted the applicant’s statement evidence is not borne out by the contemporaneous medical material. In particular, she noted the applicant made no complaint in relation to his neck following the accident until June 2020, over 18 months after the injurious event.
Ms Compton submitted the Commission would not accept the applicant’s statement in these circumstances, particularly in light of the other treatment which he had had following the incident at issue.
There can be no issue the applicant had pre-existing degenerative changes in his cervical spine. The first clinical entry surrounding the applicant’s cervical spine was on 29 June 2020 when he presented at his regular general practitioners at Rouse Hill Family Medical Centre where the following entry was recorded:
“1. Acute on chronic pain.
Fall at work/security two years ago
Pain:
-Lower back
-Starting at lower back and going to middle back and also neck pain
Throbbing pain.”
Mr McEnaney appropriately conceded there was a significant gap between the injurious event and the first reporting of any issues with the applicant’s cervical spine. However, he also noted there was no issue initially recorded in relation to the applicant’s sleep disorder, and that the mere effluxion of time does not of itself rule out an injury having taken place. He submitted the Commission would accept the applicant’s version of events as to the onset of neck pain, but noted the primary focus for the applicant’s treating practitioners in the immediate aftermath of the fall was his lumbar spine condition.
Mr McEnaney submitted, and I accept based on the clinical records, there is no suggestion the applicant had symptoms in his neck before the fall at issue. He submitted the fall was the only reasonable cause of symptoms.
For the respondent, Ms Compton submitted this was not the case. She noted the degenerative changes in the applicant’s spine may have developed the symptomology of which he complained regardless of the fall at issue, and reiterated the onus is on the applicant to prove the causal link on a common-sense basis between the fall and the symptoms complained of.
Ms Compton noted that the applicant’s independent medical examiner (IME) Dr Lee had accepted the applicant’s version of events regarding symptomology in the neck from the time of the fall in forming his view. She submitted that in light of the absence of corroborated material, Dr Lee’s opinion carried no weight.
The respondent’s IME, Dr Waller had provided two reports. He initially found the applicant had suffered an injury by way of aggravation to the cervical spine in the fall at issue, however, after being supplied with the clinical records from the respondent’s general practitioner noted in a second report dated January 2024 that the applicant had “not suffered significant injury in the fall”.
Mr McEnaney submitted that Dr Waller’s second opinion did not rule out a finding of injury, but rather qualified the statement in saying that any injury suffered was not “significant”.
That submission is, in my view, correct. As Mr McEnaney noted, the applicant gave a consistent history of his symptoms, even before his neck injury was denied. This was not a case where the applicant made an initial complaint of neck injury to a qualified medicolegal practitioner. True it is the applicant’s complaints came some 18 months after the incident at issue, however, they were made to his treating general practitioner and not in the context of making a compensation claim.
Ms Compton submitted the applicant was not a witness of truth, and also drew the Commission’s attention to the contrast between his statement in which he said he consulted his general practitioner the day after the fall at issue compared with the general practitioner’s record which demonstrate in fact he saw his doctor approximately 12 days later.
With respect, I do not believe a great deal, if anything, turns on that discrepancy. The applicant has provided his statement some years after the incident at issue, and in any event there is nothing contentious about the complaints which he made to his general practitioner when he first visited after the fall. That is, the lumbar injury of which he complained on that occasion is accepted.
Ms Compton also noted the applicant did not complaint to his physiotherapist of pain in his cervical spine until a visit on 4 January 2022, despite having first attended that practice on
16 July 2020. I accept that submission as far as it goes, however, I reiterate this does not disprove the applicant having suffered an injury in the fall at issue.On balance, I am satisfied the applicant suffered an injury to his cervical spine in the fall at issue by way of aggravation of underlying pathology. As noted, there can be no question the applicant had pre-existing pathology in his neck and lumbar spine. A CT scan taken on
11 January 2022 relevantly revealed:“There is ossification of the posterior longitudinal ligament at C2. There is endplate irregularity at C5/6. Straightening of normal cervical lordosis.
No spondylolisthesis or scoliosis.
C2/3: No canal or foraminal narrowing. There is paracentral disc osteophyte complex, indents in the anterior thecal sac. Mild canal stenosis.
C3/4: There is mild canal stenosis due to a posterior disc osteophyte complex particularly on the left. There is severe left sided foraminal narrowing due to uncovertebral osteophyte potentially impinging the exiting left C4 nerve root. No right sided foraminal narrowing.
C4/5: Central disc protrusion, calcified. Mild right sided foraminal narrowing. No left sided foraminal narrowing.
C5/6: Posterior disc osteophyte complex. Bilateral uncovertebral osteophytes. Severe left and moderate right sided foraminal narrowing.
C6/7: Posterior disc osteophyte complex. Left paracentral disc protrusion. Mild canal stenosis. Moderate to severe right and severe left foraminal narrowing.
C7/T1: No canal or foraminal narrowing.
CONCLUSION:
Multilevel endplate spondylotic changes seen. There is severe left sided C3/4, C5/6 and C6/7 foraminal narrowing potentially impinging the exiting nerve roots. Moderate to severe right sided C6/7 foraminal narrowing.”
Given my finding that the injury to the cervical spine is in the nature of an aggravation to the pathology referred to in the CT report, the relevant factual investigation is to determine the cause of the aggravation, rather than the underlying pathology itself.
In finding for the applicant, I note his complaints have been consistent to his treating practitioners, and were not made in the context of a denial of liability in relation to his cervical spine or to a medicolegal practitioner.
On balance, I accept the applicant’s submission that although he suffered neck symptomology following the accident, it began to get worse over time to the point where he complained to his practitioners. I also accept the initial focus of the treatment to the applicant was his lumbar spine.
The applicant returned to work at various times after the fall at issue. That is despite the presence of objectively serious pathology in not only his cervical spine but also his lumbar spine. As noted, the CT scans of the applicant’s cervical and lumbar spine taken on
11 January 2022 referred to at [24] above reveal the presence of significant pathology which, given its nature, must have been pre-existing at the time of the accident.Having found the pathology was pre-existing, the question is whether the applicant suffered an aggravation to that pathology. In cases where there is injury by way of aggravation, the relevant factual investigation is whether, adopting a common-sense evaluation of the causal chain, the applicant’s employment was the cause of the aggravation not the underlying pathology.
Even if the applicant’s symptoms in his cervical spine were initially mild and only got worse over time, the fact he had pre-existing pathology does not preclude a finding of injury, whether or not the underlying pathology itself changed in the injurious event. In Kelly v Western Sydney Institute NSW TAFE Commission [2010] NSWWCCPD 71, Roche DP said at [66]:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626).”
The question of “main contributing factor” in claims surrounding injuries involving a disease process or an aggravation to it has been considered in myriad cases in the Commission and its predecessors. The plain effect of the authorities dealing with this issue is whether the employment or the injurious event was the main contributing factor to the aggravation, not to the underlying pathology: see for example, Ariton Mitic v Rail Corporation of NSW (Matter Number 8497 of 2013, 8 April 2014); Mylonas v The Star Pty Ltd [2014] NSWWCCPD 174 and Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339. The effect of those decisions are in keeping with the decision of the Court of Appeal in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606, in which the Court held that where an injury consists in the aggravation of an underlying condition, the injury refers not to the underlying pathology, but rather is confined to what were the effects of the aggravation. It is not necessary for the particular underlying pathology to be made worse, however, the question is whether the aggravation impacted the individual concerned: see Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132.
In this matter, the respondent placed considerable weight on the want of corroboration of the applicant’s alleged condition for a lengthy period following his fall at work. However, as Roche DP noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered an injury. Although that case dealt with a psychological injury, in my view the principles espoused by the Deputy President are apposite to this matter. The Deputy President stated at [82]:
“Whether Mr Baker suffered a psychological injury as a result of the events at work…depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, … and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.”
The Deputy President continued at [84]:
“Moreover, as Beazley JA (as Her Honour then was) (Campbell and McFarlan JJA agreeing) explaining Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as ill in order to find an injury. The true question is whether the person was suffering symptoms, which properly diagnosed constitute an injury.”
In this matter, notwithstanding the attack by Ms Compton on the applicant’s credibility, I accept him as a witness of truth. The applicant did not make his complaints of neck pain to a medicolegal practitioner in the context of trying to bring a claim. Rather, those claims were made to treating practitioners in the ordinary course of his visits to them.
I accept Mr McEnaney’s submission that the applicant is, overall, a person who exhibits a degree of stoicism. He returned to work following this injury in the context of serious pathology in not only his cervical spine but also his lumbar spine.
I accept, on balance, the applicant suffered an injury to his cervical spine in the fall at issue, and that he had symptoms in his neck from the time of the fall, however, that they deteriorated over time to the point where he reported them to his medical practitioners. That course of conduct is not unusual in people who suffer injury, and is consistent with the applicant’s demonstrable stoicism found in the treating records of his practitioners. This is not a worker who has embellished his complaints of injury. If anything, in my view, he has downplayed them.
For these reasons, I accept the applicant’s complaint of injury as a result of the fall in the course of his employment with the respondent on 25 November 2018, and accordingly this body system will also be the subject of a referral to a Medical Assessor along with the accepted body systems.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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