Short v White Collar Blue Pty Ltd
[2024] NSWPIC 282
•28 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Short v White Collar Blue Pty Ltd [2024] NSWPIC 282 |
| APPLICANT: | Gregory Short |
| RESPONDENT: | White Collar Blue Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 28 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Permanent impairment claim; left knee injury not disputed and will be the subject of referral to Medical Assessor; claimed lumbar spine injury and/or consequential condition disputed; whether applicant suffered lumbar injury, and if so, whether there is a causal connection between it and the left knee injury suffered several minutes earlier on the same day; whether the applicant suffered a consequential condition to his lumbar spine as a result of the left knee injury; Held – the applicant suffered a lumbar injury as alleged; the lumbar injury was causally connected to the left knee injury, noting the applicant’s uncontested evidence he undertook the heavy lifting task which caused the lumbar injury with increased loading on his back owing to the pain in his left knee; the applicant also suffered a consequential condition in his lumbar spine as a result of the left knee injury, caused by an altered gait and chronic limp; both left knee and lumbar spine referred for assessment, with a combined assessment to be provided. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an injury to his left lower extremity (knee) and to his lumbar spine in the course of his employment with the respondent on 10 August 2017. 2. As a result of the injury to his left knee, the applicant also suffered a consequential condition to his lumbar spine. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 10 August 2017 Body systems referred: Left lower extremity (knee), lumbar spine 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 save for the report of Dr Bentivoglio dated 8 March 2018 which is to be removed from the material referred; (d) respondent’s Application to Admit Late Documents and attachments dated 9 May 2024, and (e) applicant’s Application to Admit Late Documents and attached documents dated 17 May 2024. |
STATEMENT OF REASONS
BACKGROUND
On 10 August 2017, Gregory Short (the applicant) was working as a labourer in the course of his employment with White Collar Blue Pty Ltd (the respondent) when he knelt to pick up debris only for a screw to enter into his knee cap. The applicant understandably felt immediate pain but somewhat startingly removed the screw from his own knee.
The applicant continued working, and approximately 10 minutes later, was asked to assist a colleague lifting a heavy piece of scaffolding. He alleges that because his left knee was in severe pain, he placed a lot of strain on his lower back as he lifted the scaffolding in an unusual manner, causing immediate pain in his lumbar spine.
The applicant also alleges that as a result of ongoing complications including the development of a limp and antalgic gait as a result of complications from his left knee injury, he has suffered a consequential condition to his lumbar spine.
The applicant’s left knee injury is admitted and will be the subject of a referral to a Medical Assessor. The alleged injury and/or consequential condition to the lumbar spine are disputed.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain for determination:
(a) whether the applicant suffered injury and/or consequential condition to his lumbar spine, and
(b) if an injury to the lumbar spine was suffered, whether it was causally connected to the left knee injury.
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 May 2024. Mr Petrie instructed by Ms Hunt appeared for the applicant. Mr Barter instructed by Ms Flanagan appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence and taken into consideration in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments;
(b) Reply and attachments;
(c) respondent’s Application to Admit Late Documents (AALD) dated 9 May 2024 and attached documents, and
(d) applicant’s AALD dated 17 May 2024 and attached documents.
At the hearing, pursuant to Reg 44 of the Workers’ Compensation Regulation 2016 (the Regulations), the respondent elected not to rely on the report of Dr Bentivoglio found at page 40 of the Reply. Accordingly, that document has not been taken into consideration by the Personal Injury Commission (Commission) and will not form part of the documentation referred to the Medical Assessor.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered injury and/or consequential condition to his lumbar spine
The applicant gave the following evidence surrounding the date of injury:
“8. On 10 August 2017, I was sweeping debris in the generator room and when I knelt to pick up the rubbish, a one-inch screw went into my left knee cap. I felt immediate pain and removed the screw from my knee. I went and saw the first aid officer who assessed the wound but did not provide any treatment. I thought I would be able to manage the pain and was determined to complete my work for the day, so I continued with my tasks.
9. Approximately 8-10 minutes after my knee injury, I was asked to assist a colleague in lifting a heavy piece of scaffolding. As my left knee was in pain, I placed a lot of strain on my lower back when lifting. As I bent to lift the scaffolding, I felt pain in my lower back as it was supporting the heavy load. My colleague firmly told me that I had to slowly lower the scaffolding to the floor when placing it back down, rather than just dropping it. This added extra pressure to my back as it was compensating for my restricted knee. After this incident, I had considerable pain in my back and knee but continued with light activities for the rest of the day.
10. Over the next few days, I experienced a build-up of additional pain throughout my back and hips which led to a limp. My knee was also unstable and often gave way when I was walking. The pain in my knee and back led my movements to be completely restricted. I was having difficulty walking, lifting and bending.
11. On 12 August 2017, I attended the Emergency Department at Royal Prince Alfred Hospital due to the severe pain in my left knee and lower back. I was discharged with a Zimmer splint and crutches and a referral to follow up with the fracture clinic.
12. On 15 August 2017, I was admitted to Royal Prince Alfred Hospital under the care of orthopaedic surgeon, Dr Sanjeev Gupta with pre-patellar bursitis in my left knee. I also informed him of my back pain. When admitted, I had a warm, swollen and tender left knee and severe back pain. I was given IV antibiotics for 36 hours, but this did not resolve the symptoms.
13. On 17 August 2017, I was taken to the operating theatres for surgical drainage and bursectomy under the care of Dr Gupta. I was discharged the next day and told to take oral antibiotics, use crutches and elevate my leg. After the surgery, I felt no relief. My knee and back continued to feel unstable and was painful. This significantly affected with my mobility.”
The applicant continued to have ongoing treatment in relation to his left knee. He states he continued to have ongoing knee and back pain throughout 2017 and 2018 and continues to have both to this day.
The applicant carries the onus of establishing whether he suffered an injury or a consequential condition to his lumbar spine. Mr Barter submitted the evidence did not disclose either an injury or a consequential condition. He noted the primary evidence in relation to the applicant’s lumbar spine is that contained in his statement, which was made several years after the injurious event. He submitted that the evidence is less than satisfactory owing to the effluxion of time and the natural human preponderance to reconstruct causative events for ongoing issues.
The difficulty with this submission is the applicant attended the emergency room at Royal Prince Alfred Hospital (RPA) on 12 August 2017, and the discharge summary for his attendance reveals a complaint of low back injury suffered at work as alleged.
There is no doubt the applicant suffered pre-existing lumbar spine problems, a fact from which he does not resile and which is adequately dealt with in the medical evidence. The question for determination is whether the evidence adequately establishes the presence of a lumbar spine injury as that term is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act).
In my view, the evidence in this matter is an almost textbook example of a work-related lumbar injury. The applicant gives uncontested statement evidence as to the circumstances of the onset of lumbar symptoms. There is then an attendance at an Emergency Department which recounts not only the left knee injury but the following entry:
“On same day, was also bending forward to pick up heavy scaffolding, later had some lower back pain.”
Although corroboration is unnecessary to establish a fact in civil cases, the contemporaneous record does confirm the applicant’s history, albeit in what might be described as a standard abbreviated form which one commonly sees in emergency room notes and those of treating practitioners generally.
Mr Barter noted the applicant made little complaint following 12 August 2017 in relation to his lumbar spine, until a note of his general practitioner (GP) dated 16 May 2018 which stated:
“Severe pain in L leg complicating pre-existing back pain syndrome.”
The applicant then underwent lumbar spine imaging in September 2018 and February 2019 which confirmed pathological changes.
Mr Barter submitted those scans were primarily undertaken to determine whether there was a back-related cause for the applicant’s ongoing severe left knee symptoms. However, even if this is the case, it is still apparent that there are pathological changes to the applicant’s lumbar spine, and there is contemporaneous evidence which supports a finding of lumbar injury as alleged.
The applicant also pleads his case as one of consequential condition to the lumbar spine. There can be no doubt a worker can suffer both an injury to a body system and a consequential condition to it brought about by injury to another body part, given it is not necessary to demonstrate pathological change to an affected body system in order to establish a consequential condition.
In this matter, the applicant provided a supplementary statement in which he said the following:
“7. As outlined in my earlier statement, I sustained an injury to my left knee during the course of my employment on 10 August 2017. Approximately 8-10 minutes after, I felt pain in my lower back when I was lifting some scaffolding, which is also outlined in my earlier statement.
8. Although I did experience some pain in my back lifting at work that day, I am of the opinion that my ongoing back pain results from my left knee injury and the severity of my ongoing symptoms. The severity of my left knee pain and my ongoing symptoms of complex regional pain syndrome (CRPS) causes me to walk with an altered gait.
9. I confirm that on 16 May 2018, I attended upon my general practitioner, Dr Sarath Wimalaratne. He noted that I was suffering from severe pain in my left leg complicating my pre-existing back pain.
10. Over the years, my back pain has gradually worsened due to my altered gait. The symptoms I continue to experience as a result of my left knee injury, including my ongoing symptoms of CRPS, are quite debilitating. My left leg often gives way on me, causing me to fall or almost fall. I have been walking with a limp now for several years as a result of my left knee injury. I have difficulty walking and traversing stairs and I feel very unsteady on my feet due to the pain and weakness in my left leg.”
The applicant’s evidence concerning a longstanding limp and altered gait as a result of his left knee injury is readily confirmed in the medical evidence.
As noted, in alleging a consequential condition, a worker does not have to establish relevant pathological change as is necessary in establishing an injury pursuant to s 4. That much is made clear by a long line of authorities such as Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and Moon v Conmah Pty Ltd [2009] NSWWCCPD 134.
The applicant’s independent medical examiner (IME) Associate Professor (A/P) Boesel provided a report dated 31 January 2022, in which he took an accurate history of the onset of the applicant’s condition in his lumbar spine. A/P Boesel noted the onset of antalgic gait in the days immediately following the injurious event to the applicant’s left knee together with difficulty mobilising. He took a history of the applicant’s ongoing symptoms, which are largely not disputed. When asked to provide an opinion on causation, A/P Boesel said:
“I am of the opinion that the complex regional pain syndrome of the left knee has arisen from the penetrating nail injury and subsequent septic arthritis of the knee. This occurred in the context of the workplace. The lumbar spine injury can be attributed to a combination of a spinal loading event that occurred 10 minutes after the penetrating knee injury plus the accumulated stress on the lumbar spine pain due to abnormal gait from the CRPS. Subsequent incapacities and need for treatment directly arise out of the workplace injury.”
The respondent relied on a number of IME reports, however, they largely deal with the applicant’s knee complaints. Dr Keller in his report dated 17 November 2017 does not deal with the issue of lumbar spine pain at all. Dr Doig in a report dated 24 June 2022 disagreed with the diagnosis of CRPS to the applicant’s left knee but did not deal with the lumbar spine at all.
The only IME from the respondent’s perspective who provides an opinion in relation to the lumbar spine is Dr Sheehy, who assesses a lumbar spine impairment of 6% whole person impairment but does not provide any opinion as to the cause of it. Dr Sheehy referred to the specific injurious event to the lumbar spine on the same day as the left knee injury, and also noted the applicant had suffered prior back injuries from which he had made a successful recovery. Dr Sheehy accepted the presence of a lumbar spine injury arising from 10 August 2017, however, he did not provide any opinion as to whether or not the applicant suffered a consequential condition.
On balance, I am of the view the evidence supports a finding of consequential condition to the lumbar spine. There is no doubt the applicant has continued to suffer debilitating left knee symptoms, although the precise diagnosis in relation to those symptoms is in issue. There is no question he walks with an altered gait and has suffered a chronic limp. On a common-sense evaluation of the causal chain, I am of the view the applicant’s left knee injury has caused a consequential condition to his lumbar spine as a result of his antalgic gait. Accordingly, the applicant’s lumbar spine will also be referred to a Medical Assessor.
Whether there is a causal link between the left knee and lumbar spine injury suffered on 10 August 2017
As Mr Barter noted, the left knee and lumbar spine injuries would give rise to separate assessments of impairment unless it could be established that there is a causal link between the initial left knee injury and the lumbar spine injury suffered several minutes later.
In my view, the evidence establishes there was such a link. The applicant sets out in his uncontested statement that he undertook the lifting exercise of the scaffolding in a different manner to normal owing to his left knee injury, thereby placing additional stress on his lumbar spine. The fact of the lumbar spine injurious event is not disputed, supported as it is by the contemporaneous evidence of the RPA discharge summary of 12 August 2017.
Applying a common-sense evaluation of the causal chain as required by the Court of Appeal decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, I am of the view there is a clear causal link between the knee injury and the lumbar spine injury which arose only several minutes later. There is no evidence which contradicts the applicant’s version of events, and I find him to be a witness of truth. This being so, I accept his version of events including the reason why he undertook the lifting exercise of the scaffolding in the manner in which he did.
This being so, it follows that there will be a combined impairment assessment of the lumbar spine and the left knee.
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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