Roy v Endless Belt (Wollongong) Pty Ltd
[2024] NSWPIC 364
•8 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Roy v Endless Belt (Wollongong) Pty Ltd [2024] NSWPIC 364 |
| APPLICANT: | Mark Anthony Roy |
| RESPONDENT: | Endless Belt (Wollongong) Pty Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; worker alleges consequential conditions to the left and right shoulders, neck and lumbar spine as a result of an accepted injury to the left hand and wrist; respondent refutes consequential conditions; claim for lump sum compensation pursuant to section 66; Kooragang Cement Pty Ltd v Bates, Rail Services Australia v Dimovski & Anor, Kumar v Royal Comfort Bedding discussed; Held – consequential conditions to the bilateral shoulders and neck arose from traumatic hand injury; award for the respondent with respect to claim for lumbar spine; consequential condition not satisfied on the balance of probabilities that symptoms in the lumbar spine are consequential due to paucity of medical evidence; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment of the left hand, wrist and shoulder, neck and right shoulder. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a workplace injury to his left hand and wrist on 2 June 2018. 2. The applicant developed a consequential condition to the left shoulder, cervical spine and right shoulder as a result of his left hand and wrist injury. 3. Award for the respondent with respect to any claim for consequential condition to the lumbar spine. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment arising from injury on 2 June 2018 to the; (a) left upper limb (including hand, wrist and left shoulder); (b) right upper limb (shoulder); (c) cervical spine, and (d) TEMSKI scarring. 5. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents dated 5 July 2024 filed by the respondent |
STATEMENT OF REASONS
BACKGROUND
Mr Mark Roy, (the applicant) suffered injury to his left hand and wrist in the course of his employment, with Endless Belt (Wollongong) Pty Ltd (the respondent). The respondent accepted the claim and paid benefits relating to that injury. He subsequently claimed s 66 lump sum compensation under the Workers Compensation Act (1987) (the 1987 Act) which included a claim for consequential conditions. No offers of compensation were made with regards to the accepted left hand injury as the respondent considered the level of impairment fell short of the threshold. It also denied liability for the claimed consequential conditions. As a result an Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (the Commission).
The ARD summarises the mechanism of injury and claim as follows;
“The worker sustained injury on 2 June 2018 when he was working at a quarry, maintaining and repairing a belt on a machine/conveyor. It was during this process, that he was using a device to fix the belt, when the device snapped back and smashed the worker's left hand. As a result, the worker sustained a primary left hand crush / fracture injury, as well as consequential conditions to the right upper limb, left upper limb, cervical spine as well as complex regional pain syndrome.”
Whilst the injury description does not plead consequential condition to the lumbar spine, (it was the subject of assessment and s 78 notice) and so will form part of this consideration. At the preliminary conference the claims made with respect to complex regional pain syndrome were withdrawn.
The Commission’s efficient case management pathway was employed ultimately resulting in the parties requesting a determination on the claimed consequential injuries. Parties acknowledge referral to a Medical Assessor for assessment of whole person impairment was necessary depending on my findings.
At arbitration, the applicant was represented by Mr Hanrahan of counsel instructed by Ms Shain. The applicant was present. The respondent was represented by Mr Morgan of counsel instructed by Ms Whiting. An insurer representative was present. No oral evidence was adduced.
In considering the matter, I considered oral submissions from counsel, the documents attached to the ARD and the Reply and Application to Admit Late Documents (AALD) containing a supplementary report of Dr Machart dated 4 July 2024 filed on the day of the arbitration.
EVIDENCE
Applicant’s evidence
In a statement prepared for these proceedings,[1] the applicant recites what I can only describe as an impressive work history, being involved in heavy laboring work since leaving school in 1978, remaining employed by the respondent for 22 years as a conveyer belt splicer/technician, although made redundant following the injury.
[1] Folio’s 6-10 of the ARD.
On 2 June 2018, whilst attempting to replace a conveyer belt, a spring loaded belt clamp sprung open and struck the back of his left hand with great force resulting in severe pain and an open wound. The injury was reported. Treatment was anything but straightforward. Despite general practitioner reassurance his pain, swelling and tenderness would subside it did not, resulting in referral to hand specialist and microsurgeon, Dr Mark Nabarro, who ultimately diagnosed a fracture and left carpal tunnel syndrome. Following failed conservative management, carpal tunnel surgical release was undertaken on 25 June 2019.
Continued and unremitting pain resulted in Dr Nabarro referring the applicant to Dr Yu, a pain specialist, who diagnosed a post crush injury with neuropathic pain. After much conservative treatment failed to relieve symptoms, Dr Yu suggested a cervical spinal cord stimulator to assist with the neuropathic pain. Following a trial, the implant was permanently implanted in August 2020.
The applicant reports the stimulator did assist with pain in the left hand and arm but that he had pain in the right shoulder and neck. Despite the stimulator, medication in the form of Endep, Endone, Norflex and Panadol Osteo form part of the daily management plan for pain control. He now also has pain at the stimulator’s battery insertion site over the left upper buttock.
The applicant states he was instructed by his doctors to avoid use of the left hand and this resulted in him overlying on his right arm to avoid left arm pain aggravations.
As regards activities of daily living, gripping is difficult and there is an overreliance on the right upper limb due to pain in the left upper limb. Lifestyle adjustments have been made.
Dr James Yu, interventional spine specialist
In his report dated 15 November 2019,[2] a cervical spinal cord stimulator was recommended for “persistent left arm neuropathic pain associated with left shoulder pain with restricted movement.” On 20 August 2020 neck pain was recorded as continuing.[3]
[2] Folio 62 of the ARD.
[3] Folio 150 of the ARD.
On 22 October 2020, it was recorded that the neck and bilateral arm pain were well controlled but that he presented with:
“…recent lower back pain and some left leg pain down to his thigh, which he rates at 9/10. He has been suffering from this pain in the last three weeks. He reports having a fall 2-3 weeks ago causing aggravation of his pain condition…
I believe that his recent lower back pain is most probably due to muscular issues. With this I have encouraged him to continue seeking his physiotherapy and engage with his home based exercise regime to strengthen his muscles and prevent further physical deconditioning”.[4]
[4] Folio 170 of the ARD.
Follow up assessment on 19 January 2021[5] confirmed neck and bilateral arm pain were well controlled with the stimulator.
[5] Folio 171 of the ARD.
On 20 April 2021,[6] it was recorded neck and bilateral upper limb pain were well controlled with the stimulator. Hand therapy and upper limb strengthening exercises were prescribed. An ultrasound of the lower back was requested as the applicant complained of swelling below the battery insertion site on the left hand side. The investigations confirmed no complication.[7]
[6] Folio 66 of the ARD.
[7] Folio 122 of the ARD.
Following a telehealth assessment on 20 July 2021[8] persistent bilateral upper limb pain and neck pain were recorded with complaints of ‘pocket site pain’ (where the battery was inserted in the lower lumbar area) for which platelet rich plasma (PRP) was recommended.
[8] Folio 173 of the ARD.
Further follow up assessments record ongoing symptoms in the upper limbs and neck.[9] Battery site pain was recorded on 22 November 2022.
[9] Folios 177-178 of the ARD.
In his report dated 14 December 2023, Dr Yu summarises the presentations as (unedited):
“When I saw Mr Roy initially on 27th November 2018, he only presented with left hand pain. On 6th August 2019, he has complained of left shoulder pain. The range of movement of his left shoulder was limited on flexion and abduction at 90 degrees. He has reported bilateral upper limb pain and bilateral leg pain on 10th September 2020. He then subsequently reported that he has started to experience lower back pain during his consultation with me on 22nd October 2020. Having suffered from chronic pain since 2018, Mr Roy developed secondary neuropathic and musculoligamentous issues. It is quite common to see altered body mechanics as a mechanism of our body to cope with pain. Long term alteration of normal body movements could lead to issues in other body parts. On the case of Mr Roy, he has developed physical deconditioning due to physical inactivity, accompanied by psychological issues, and most likely, he has also developed central sensitisation….
It is highly unlikely that Mr Roy would have developed widespread pain if he has not sustained his lefthand injury at his work. I believe that his work injury was the substantial contributing factor to his widespread pain including neck pain, bilateral shoulder pain, low back pain and bilateral leg pain. Mr Roy only developed pain in multiple areas of his body only a few years after suffering for his left-hand pain. Having suffered from chronic pain since 2018, Mr Roy developed secondary neuropathic and musculoligamentous issues. It is quite common to see altered body mechanics as a mechanism of our body to cope with pain. Long term alteration of normal body movements could lead to issues in other body parts. On the case of Mr Roy, he has developed physical deconditioning due to physical inactivity, accompanied by psychological issues, and most likely, he has also developed central sensitisation. I am unaware of any pre-existing condition that may have contributed to Mr Roy’s symptoms. He also did not experience any of these pain symptoms prior to the injury.”[10]
[10] Folios 182 and 182 of the ARD.
Lewis Campner, Sydney Spine and Pain Rehab
In an allied health request dated 10 September 2020 symptoms were recorded as:
“…left hand pain, left hand swelling, restricted left hand ROM, left shoulder restricted from 90 degree flexion and abduction, persistent left shoulder pain” (post op spinal cord stimulator implantation).[11]
[11] Folio 204 of the ARD.
Dr Mark Nabarro, hand and microsurgeon
Serial reports refer to treatment for the fracture of the middle finger and ultimately the carpal tunnel release requiring pain management.[12] Review of the documents confirm his treatment was isolated to the left hand and wrist injury.
[12] Folios 132-145 of the ARD.
Dr Peter Scougall, hand and wrist surgeon
Dr Scougall records the carpal tunnel release and complications associated with complex regional pain syndrome along with neck pain.[13] Review of the documents confirms his treatment was confined to the left hand injury and non-compensable right hand symptoms.
[13] Folio 152 of the ARD.
Dr Prabhu, general practitioner
Dr Prabhu referred the applicant to the South Coast Health Hub requesting an opinion on management of the neck/shoulder and upper limb pain…“ongoing since last 5 years”.[14] I found the notes generally lacking detail.
[14] Folio 131 of the ARD.
Dr Andrew Porteous, occupational physician
Qualified for the applicant, Dr Porteous on 23 February 2023[15] reported a consistent history with regards to the left hand injury and its management and records a history of neck and shoulder pain. He reports (unedited)
“…with over using the left arm, he developed some right sided shoulder pain and pain sometimes in the upper limb and other areas, which he has put down to overuse because of favouring the left. This continues to be mildly troubling” (I assume that the reference to the overusing the left arm is in error and meant to read overusing the ‘right arm’.)
[15] Commencing at folio 77 of the ARD.
As regards the current condition he reported (unedited):
“Currently Mr Roy reports chronic left neck, shoulder and arm and hand pain rated 5/10 to 7/10 or 8/10 on a pain scale. The hands are often hot or cold and sweats. It changes colour.
He reports left upper buttock pain in the area the stimulator works protruding. This is essentially to touch, and he cannot put pressure on it including sitting on the chair without twisting.
He reports mild-to-moderate right shoulder pain when doing repetitive activity or when it is up, noting he is right-handed. He relates this to overusing it with his injuries in the left neck, shoulder and arm.
For pain relief, he is using Endone one twice a day, Norflex at night and Endep at night.
He has frequently disturbed sleep and when he wakes, he to get up to roll over…
He has got chronic pain now in the area on the left lower back, a buttock area where the stimulator was implanted and there was sensitivity today to light touch suggesting that there is a pain disorder developing there from the surgery and implantation. The implantation was because of the injury to the left hand. It is, therefore, a consequential surgery, and in my opinion, the development of the scarring and injury to the nerve in that area because of the surgery is consequential to the left-hand injury, and therefore, treatment is reasonably expected to be covered by the insurer, in my opinion. I disagree with the Section 78 Notice in relation to that. Dr Yu is a Pain Specialist and has recommended PRP which appears reasonable; however, I would note that I would question and mention it to Mr Roy why the stimulator is not moved to clarify that there is no reaction to the actual implantation in that area of the introduced stimulator. In my opinion, he has aggravated, accelerated or deteriorated pre-existing degenerative change in the right shoulder due to overusing and favouring it because of the injury to the left hand.
In my opinion, there is a consequential aggravation or exacerbation of pre-existing degenerative change in the right shoulder because of the injury to the left hand and that is consequential.”
Dr Loretta Reiter, consultant rheumatologist
The report dated 10 October 2023 predominantly focuses on the diagnosis and treatment of chronic regional pain syndrome, a claim withdrawn by the applicant.[16]
Respondent’s evidence
[16] Commencing at folio 103 ARD.
Dr Frank Machart, consultant orthopeadic surgeon
Qualified by the respondent, Dr Machart in his report dated 31 August 2023 concluded (unedited):
“There is no connection between cervical symptoms and the mechanism of injury to the left hand.
I did not find objective evidence of cervical pathology. If there was, then it is unrelated to the left hand condition.
The right shoulder pathology is impingement. I did not find connection between the right shoulder pathology and the pathology in the left hand. The reason offered was ‘overuse’. This is as generic term which requires definition. I may point out that overuse in the shoulder is not supported by evidence-based medicine. If there was exception to evidence-based medicine there would need to be objective evidence which here there is not. Day to day activities lifting a box of groceries is not above shoulder work and is not consistent with the pathology of impingement. I did not see evidence of overuse injury.
I did not see disability in the left hand that supersedes the Dupuytren's contracture. Strength is limited by Dupuytren's contracture rather than by the injury.”[17]
[17] Commencing at folio 32 of the ARD.
In his supplementary report dated 4 July 2024 he recorded (unedited):
“I am not in agreement that there was a lumbar spine injury. For there to be assessable WPI lumbar spine there needs to be injury to the spine. The allegedly painful stimulator was adjacent to the pelvis and not in the spine and does not satisfy spinal WPI…
Dr Yu did not demonstrate a specific injury to the lumbar spine due to the spinal stimulator. This is something that I expected the treating surgeon to document as contemporaneous evidence if this was to be corroborated as injury outlined by Dr Porteous…
There was no causative mechanism of ‘using his shoulders for strength’. This did not cause pathology in the left shoulder. His overall activity was less than would have been in absence of the injury, particularly in view of CRPS which limited shoulder use. This hypothetical was not supported by careful analysis of strain put through shoulders.”[18]
[18] AALD filed by the respondent on 5 July 2024.
SUBMISSIONS
The submissions were recorded and it is unnecessary to slavishly repeat them here. On behalf of the applicant is was submitted:
i) the applicant has established on the balance of probabilities the consequential claimed conditions arise from the significant trauma to his left hand, the pain of which has been unremitting and for which there has been extensive conservative and surgical intervention and pain management ultimately resulting in the insertion of a cervical spinal stimulator, and
ii) the applicant is a witness of credit, with an impeccable work history, whose life has been derailed by this injury. There are no other factors contributing to these conditions and the chain of causation is intact.
The respondent submits there is a paucity of medical evidence to support claims for consequential conditions. It does not dispute the applicant has had a significant injury to the left hand and wrist. It accepts, but will not concede symptoms in the right shoulder could possibly be a consequential condition, but cannot accept that a lumbar spine condition is consequential simply because a there is pain at the battery insertion site. It submits that it cannot be found that just because the cervical spine stimulator was inserted to control symptoms arising from the left hand injury that it automatically follows that pain arising from the insertion of the battery to control pain symptoms is a consequential condition. This is because the pain appears to be subcutaneous, at the insertion site and not a condition that arises from the lumbar spine. The respondent maintained overall there is a lack of pathology to support the claimed consequential conditions.
FINDINGS AND CONCLUSIONS
There is no dispute the applicant suffered an injury to his left hand and wrist and resulting scarring. Given this, I have not slavishly recounted the evidence in this regard. The issue that I must determine is whether the applicant has consequential conditions to the left upper limb (shoulder), cervical spine (neck), lumbar spine (back) and right upper limb (shoulder) as a result of his left hand and wrist injury.
The assessment of a consequential claim is not straightforward mainly because the term is not defined in the 1987 Act. In the interests of brevity, I have summarised the authorities relating to such an assessment, but by no means does this purport to be an exhaustive summary, relevantly:
i) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities;[19]
[19] Loxton v Vines and March v Streamer(E & MH) Pty Ltd [1191] HCA 12; (1991) 171 CLR 506.
ii) each case must be determined on its own facts;
iii) it is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act[20] (Moon);
iv) in order to establish a condition, there is to be a ‘common sense evaluation’ of the causal chain, determined on the basis of the evidence, including expert opinions[21] (Kooragang);
v) a finding of a consequential condition does not require the identification of pathology[22] (Kumar);
vi) a consequential injury occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury (Dimovski);
vii) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
viii) there must be an unbroken chain of causation from the injury to the development of the consequential condition;
ix) it is not necessary that the applicant prove that he suffered an injury to the claimed consequential areas; all he needs to demonstrate is that the symptoms arise from the accepted hand/wrist injury;
x) the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury,[23] and
xi) the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition.[24]
[20] Moon v Conmah Pty Limited[2009] NSWWCCPD 134 (Moon).
[21] Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452 (Kooragang).
[22] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[23] Sidiropoulos v Able Placements Pty Limited[1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor[2004] NSWCA 267; (2004) 1 DDCR 648.
[24] As Deputy President Roche noted in Baker v Southern Metropolitan Cemeteries Trust[2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour[2011] NSWCA 199 at [86]).
Assessment was complicated in this matter as I found the qualified medical evidence to be suboptimal, each expert failing to articulate a pathway of reasoning. Dr Machart’s opinion focused heavily on the lack of ‘pathology’ and ‘injury’, however the authorities above show that such factors are not exclusively relevant to the assessment of a consequential condition. Dr Porteous hastily concluded that a lumbar spine condition exists but fails to reconcile how or why given pain is confined to the skin surface at the battery implant site, even being critical of the failure to perhaps reposition the battery to assess whether symptoms could be relieved. Importantly, despite referring to the vast clinical notes, none of the experts commented on the applicant’s injury to the lumbar spine in private circumstances as recorded by Dr Yu in his report dated 22 October 2020. The applicant’s statement is silent about this injury/fall. Nothing turns on this omission given my ultimate findings.
Dr Prabhu’s clinical notes lack detail. I acknowledge authorities indicate care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury:[25]
[25] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
The absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence. [26] While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before I can feel actual persuasion about the existence of a fact in issue.
[26] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].
I have weighed the evidence of the applicant together with other objective evidence and/or the absence of it.[27] Overall, I placed greater weight on the reports of Dr Yu which whilst concise were thorough, consistent and contemporaneous. Having weighed the medical evidence and applying the authorities in paragraph 32 above, I make the following findings;
[27] Department of Education and Training v Ireland [2008] NSWCCPD 134.
Lumbar spine
I find the applicant has not established on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction he suffered a consequential condition to the lumbar spine because;
(a) the bulk of the evidence suggests that the ‘pocket pain’ whilst arising out of the stimulator (and where the battery now resides) is in the upper buttock area and not the region of the lumbar spine;
(b) the evidence fails to address the injury the applicant has sustained in private circumstances. The applicant may well argue that such injury was trivial hence his failure to record it in his statement, however, I would reject such an argument as this is the first occasion where back pain was recorded after the spinal stimulator was inserted;
(c) the contemporaneous notes of Dr Yu both until the injury in private circumstances and after is silent on any true lumbar symptoms, but does record pain at the insertion site of the battery, which the medical evidence does not demonstrate is an actual lumbar spinal condition, rather appears to be subcutaneous, that is related to the skin at the pocket insertion site, and
(d) Dr Porteous speculates perhaps repositioning of the battery may assist in the identification of the true source of pain, hence casting doubt on a lumbar spine condition.
For these reasons, I find in favour of the respondent with respect to any claim for consequential condition to the lumbar spine.
Cervical spine, left shoulder, right shoulder and cervical spine
I find that the applicant has established, on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction he has suffered consequential condition to these areas because;
(a) whilst I note the original injury was to the left hand/wrist, it was a significant one resulting in much investigation, surgery and the development of significant neuropathic pain which resulted in referral to a pain specialist once orthopaedic measures were exhausted;
(b) the serial reports of Dr Yu and the allied health referral record the gradual onset of symptoms extending into the left shoulder, neck and right shoulder as early as November 2019;
(c) the applicant maintains symptoms in the right shoulder occurred due to favouring the left arm, a matter which is support by Dr Yu and would satisfy the common sense test (Kooragang) and is consistent with the applicant’s statement. The respondent acknowledged but declined to concede right shoulder pain could be due to favouring the left side as a result of the left hand injury, but I find the medical evidence supports this;
(d) Dr Machart’s validly criticises the term ‘overuse’ injury. However, in this factual circumstance, I find that the contemporaneous medical evidence supports there is a causal chain established in the development of symptoms in the left shoulder, neck and right shoulder arising from the initial trauma to the left hand\wrist and my careful review of the medical evidence confirms that chain is unbroken; there was no intervening incident contributing to the development of those symptoms, as they arose from the original trauma to the left hand and wrist and its management; (Dimovski)
(e) I find Dr Yu’s serial reports to be a reliable representation of the onset of symptoms arising from the left hand/wrist injury and have placed great weight on these reports which has resulted in the development of consequential conditions in these areas solely arising from the left hand injury.
I acknowledge the respondent’s argument that there is an absence of pathology to explain the consequential conditions, however as raised at arbitration, this is not required (Kumar) and so I must reject this argument.
For these reasons I find the applicant suffers from consequential conditions in the left shoulder, neck and right shoulder and they will now be referred to a Medical Assessor for whole person impairment assessment in conjunction with the accepted conditions to the left hand, wrist and TEMSKI (original wound and surgical scarring).
SUMMARY
For the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination.
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