Sivankutty v State of NSW (Sydney Local Health District)
[2021] NSWPIC 294
•17 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Sivankutty v State of NSW (Sydney Local Health District) [2021] NSWPIC 294 |
| APPLICANT: | Jinu Thottumkal Sivankutty |
| RESPONDENT: | State of NSW (Sydney Local Health District) |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 17 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Application for weekly payments and section 60 compensation; closed period sought for recovery period from right lower extremity incapacity; respondent expert asserted osteoarthritis was the cause, and was not compensable, being constitutional in nature; applicant relied on treating orthopaedic surgeon, treating neurosurgeon and medico-legal orthopaedic surgeon, who agreed that the symptoms were caused by pathology at L5/S1; Held- respondent expert inconsistent and not credible; Award applicant. |
| DETERMINATIONS MADE: | 1. The respondent will pay the applicant the total sum of $14,199.19 in respect of his claim for weekly payments, in accordance with the Revised Wages Schedule lodged by the respondent on 7 July 2021. 2. The respondent will pay the applicant’s s 60 expenses on production of accounts and/or receipts and/or HIC Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Jinu Thottumkal Sivankutty, the applicant, brings an action for a closed period of weekly compensation and payment of s 60 expenses against the respondent, the name of which was amended by consent at the hearing to “State of New South Wales, Sydney Local Health District”, for injury sustained to the applicant’s lower back and right hip caused by the nature and conditions his employment from “1 September 2019 to December 2019”.
Dispute notices were issued on 2 April 2020, 21 May 2020 and 11 June 2020.
The Application to Resolve a Dispute (ARD) and Reply were duly lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer injury caused by the nature and conditions of his employment?
(b) If so, does the applicant have a capacity for suitable employment.
PROCEDURE BEFORE THE COMMISSION
The matter was heard by way of video link conciliation and arbitration on 5 July 2021. Mr Damien Hill from Messrs McNally Jones Staff Lawyers instructing Mr Howard Halligan of counsel appeared for the applicant. Ms Durga Shivaji of Messrs Bartier Perry Lawyers instructing Mr Dewashish Adhikary of counsel appeared for the respondent. 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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Application to Admit Late Documents and attached documents from the applicant dated 20 June 2021, and
(c) Reply and attached documents.
Oral evidence
No application was made in relation to oral evidence.
FINDINGS AND REASONS
The applicant was born in 1981 in India. He lived in Dubai for a while and then moved to Ireland where he lived from 2012 until coming to Australia in 2018. He has three children under eight years and his parents also reside with him.
Mr Sivankutty had worked variously as a delivery driver and sales assistant in Ireland, and as a computer operator in Dubai.
He commenced working with the respondent on 15 January 2019 at Concord Hospital, working as a Hospital Assistant. He described the nature and conditions of his employment as involving general cleaning, mopping, polishing and dealing with infectious waste bins. He also undertook porter duties, moving beds and wheelchairs between wards. He was also involved in specimen collection.[1]
[1] ARD page 2 [11]-[14].
Mr Sivankutty worked in the Clinical Sciences Unit from about September 2019, which area included the Dialysis Unit. That work was different to most departments, Mr Sivankutty said, because he was required to clean the whole area on a daily basis. He said that the Dialysis Unit was a busy unit. It was heavily used and became particularly dirty. The beds were full all day generally and about 40-50 patients would pass through the unit per day.
Mr Sivankutty described his routine for cleaning the Dialysis Unit. This included sweeping the whole floor and then emptying bedside bins of which there were about 18, each about waist height. The bags needed to be lifted out of the bins and placed into a larger bin that was a wheels. The larger bins were then pushed to the waste area. Amongst the jobs he was required to do in that unit was mopping, which he said would take about two hours per day. He said there was a lot of blood splatter in the unit, and the chlorine powder used to neutralise it would crystalise and dry on the floor, requiring mopping with some energy to get the material off the floor surface.
Mr Sivankutty worked on a fixed roster five days per week. He said that between September and November 2019 he found he lost about six kgs which he attributed to the amount of work he was doing.
On or about 9 December 2019 he felt the onset of “generalised pain about my right hip area and right lower back and right buttock area.” He said:[2]
“……The nurses noticed I was limping and dragging my right leg. Nurse Ida and Nurse Eric asked me what was wrong with me. They showed me some exercises and told me I should rest.”
[2] ARD page 5 [36].
Mr Sivankutty reported the onset of his pain to the Leading Hand and his Supervisor. He then rested at home. He came back to work the following day, feeling a bit better until he was doing the mopping, when the pain became intense again.
Mr Sivankutty’s statement then took on the appearance of a chronology. This related the history of Mr Sivankutty’s subsequent treatment, including investigations and management. I am grateful for the attention to detail thereby given, but there is no contest as to these matters, the most significant of which were discussed in the expert and treating reports.
Of relevance is that Mr Sivankutty underwent an x-ray and ultrasound of his right hip on 13 and 19 December 2019. He went on light duties, including mopping. Mr Sivankutty described the continuing deterioration of his right leg as he was allocated work in the Palliative Care Unit, which was lighter.
Mr Sivankutty continued to consult Dr Sakthivel regularly and his ongoing pain continued and caused him to have sleeping difficulties.
Mr Sivankutty then travelled to India on 19 January 2020 for a ceremony concerning his new born daughter. The trip had been organised prior to the onset of Mr Sivankutty’s condition, but Dr Sakthivel advised that Mr Sivankutty should go to India.
Whilst he was in India between 21 January 2020 and 3 March 2020 he stated that he attended hospital at Thiruvalla in India.
He said that he attended about four times in the first week he arrived and amongst the tests that he was administered was an MRI scan of his lumbar sacral spine. A discharge summary was lodged from the Thiruvalla Hospital,[3] which showed that he had obtained treatment between 21 January 2020 and 3 March 2020 for muscular strain, and that he had difficulty walking or standing.
[3] ARD page 37.
On his return from India on 7 March 2020 Mr Sivankutty returned to Dr Sakthivel for treatment. He saw Dr Paul Miniter for the insurer on 16 March 2020. Mr Sivankutty took with him films of investigations, but said that Dr Miniter did not wish to look at them, and that he was told by Dr Miniter that he had no problem. Mr Sivankutty said that he later saw Dr Miniter’s report of 27 March 2020. He disagreed with Dr Miniter’s conclusion that his symptoms were caused by osteoarthritis, as he had not experienced any symptoms in his right hip until he undertook the work in the dialysis unit.
Dr Sakthivel referred Mr Sivankutty to Dr Paul Della Torre, Orthopaedic Surgeon, who advised Mr Sivankutty that his symptoms did not come from his hip, but were revealed in the MRI scan taken in India to originate in his lumbosacral spine. Mr Sivankutty was certified unfit for work by Dr Sakthivel from 9 April 2020.
Further investigations of Mr Sivankutty’s lumbar spine revealed an annular tear at L5/S1, and he was referred to a Neurosurgeon, Dr Omprakash Damodaran. Mr Sivankutty returned to work on light duties on 1 June 2020. The periods that Mr Sivankutty was working light duties were reflected in the agreed wages schedule.
Dr Paul Della Torre
Dr Della Torre reported on 7 April 2020, in the first of three reports. He took a history that the applicant felt a sudden increase in pain on 9 December 2019 whilst performing his duties which worsened, and that over the ensuing two weeks the hip felt unstable.
Dr Della Torre noted a subtle limp on examination and noted that low resolution MRI scan of the lumbosacral spine had been taken whilst the applicant had been in India. He was not able to see the scan itself due to software incompatibility and the report was not of assistance.
Dr Della Torre suspected that there was a right sided lower lumbar spine tenderness radiating into the right buttock, which the applicant described as “hip pain”. Dr Della Torre said that physical examination did not correspond with right hip pathology and the MRI scan thereof dated 10 January 2020 showed benign and longstanding changes. He agreed that involvement of the right hip was not clinically indicated but that there were discrete neurological signs at the lumbosacral area of the spine. An MRI scan was recommended.
At the time of Dr Della Torre’s next report of 5 May 2020[4] the MRI scan had been taken on 27 April 2020. Dr Della Torre said in discussing the radiological investigations:
“Radiological investigations include MRI Scan reviewed from last week which demonstrates an acute posterior annulus tear of the intervertebral disc at the L5/S1 interspace. The descending S1 nerve roots are close to the posterior margin of the annulus in this region and maybe irritating the passing nerve root. There is no sign of spinal cord stenosis or exit foraminal narrowing. MRI scan of the right hip (10/1/2020) was again reviewed with Mr Sivankutty and his wife that clearly demonstrates no bone oedema nor stress response of either the right femoral head or acetabulum. There is no effusion or synovitis of the right hip therefore there is no demonstrable osteoarthritis of the right hip. While there are moderate to high chondromalacia evident on the lateral margins of the acetabular roof as measured by the radiologist as 10x13mm, these changes are benign, quiescent, long standing and definitely unrelated to his current presentation and workplace injury. There is no acute oedema nor inflammatory changes demonstrated in these right hip scans taken only 4 weeks post injury - if this was related to Mr Sivankutty's acute injury there would definitely be residual inflammatory, fluid and oedematous changes.”
[4] ARD page 54.
Dr Della Torre summarised that the appearance on the MRI scan of the lumbar spine was consistent with a mechanism of injury of a bending, twisting and lifting manoeuvre. He said[5]:
“It is highly likely that this tear is responsible for the entirety of Mr Sivankutty's symptoms and that previous noted mild hip pathology is non-acute and long standing, and the latter unrelated.”
[5] ARD page 55.
Dr Della Torre though that Mr Sivankutty was not fit to return to full duties.
In his third report of 26 May 2020[6] Dr Della Torre discussed the dispute notice with Mr Sivankutty. He noted[7]:
“Mr Sivankutty again states that he DID NOT present with right hip pain but instead mistakenly reported BUTTOCK PAIN to his ‘hip’ which is a common misunderstanding in patients with injury. Buttock pain is actually ATYPICAL HIP PAIN and can be referred from the lower lumbosacral spine or sacroiliac joint, as well as hip pain. This buttock pain is unchanged from acute presentation and reported by Mr Sivankutty and in fact it was myself who localised the source to have come from lumbar spine on
examination through spinal percussion - it is not reasonable to expect a patient to know or understand referred pain.”[6] ARD page 49.
[7] ARD page 49.
Dr Della Torre referred to the right hip MRI of 10 January 2020 and again repeated that it did not show acute changes of osteoarthritis. He said[8]:
“While there is a limited area of chronic chondral wear, this is quiescent, long standing and benign. There is unequivocally and undoubtedly not one single of the four signs of osteoarthritis of the right hip: Namely, there is no joint line narrowing, no subchondral sclerosis, no subchondral cysts and no osteophytes. In fact, THERE IS NO MENTION OF OSTEOARTHRITIS quite correctly on this MRI scan report by the radiologist.”
[8] ARD page 49.
Dr Della Torre concluded by repeating that the buttock pain was related to referred lumbosacral spine pain coming from an annular tear at L5/S1. The pain then manifested itself as buttock pain. Dr Della Torre said it resulted in the delay of an accurate diagnosis.
Dr Damodaran
The applicant was referred to Dr Omprakash Damodaran, Neurosurgeon. Dr Damodaran issued three reports, two dated 11 June 2020, and the other 30 March 2021.[9]
[9] ARD pages 48, 89 and 103 respectively.
In his first report, which appeared to be addressed to Concord Hospital, Dr Damodaran took a history of “significant right sided paraspinal pain” after Mr Sivankutty had been doing heavy work as a cleaner at the hospital. Dr Damodaran noted that the pain improved when Mr Sivankutty limited his activities and Dr Damodaran thought that his imaging and symptoms were consistent with a facet related back pain. He said that that type of pain was usually related to heavy work such as cleaning. He noted that Mr Sivankutty was “very keen to return to work”. It was Dr Damodaran’s advice to do so in a gradual fashion.
In his second report of 11 June 2020, Dr Damodaran reported to the GP, Dr Sakthivel, saying that he thought the work at Concord Hospital may have led to an exacerbation of a pre-existing condition, which he defined as “facetogenic pain.” He advised conservative treatment and a return to work on light duties with the caveat that a change in duties might need to be considered if there was no improvement.
Dr Damodaran reported again on 30 March 2021 to the applicant’s solicitors. He took an accurate history, including the trip to India and the first visit to Dr Paul Miniter at the behest of the insurer.
Dr Damodaran noted Dr Miniter’s opinion that the pain was secondary to a minor osteoarthritic hip and that a further opinion had been sought from Dr Della Torre, who disagreed with Dr Miniter and stated that the pain was spinal.
On examination Dr Damodaran found that the applicant had limited range of lumbar flexion and extension movement, and that pain could be reproduced on flexion and extension and lateral bending movements. This was focused mainly around the right sided paraspinal area.
The lower limb neurological examination proved to be normal and Dr Damodaran thought that the clinical symptoms and investigations were consistent with a facet mediated pain. He noted a small annular tear at L5/S1 on the MRI scan, but said there was no evidence of any nerve root compression. His diagnosis was[10]
“It is likely that Jinu's main problem is facet mediated back pain. Repetition of activities can result in this type of facet mediated axial back pain. Some discogenic back pain can also present in this way. The small annular tear could be related to the occupation or an age related degenerative change. The mechanism and the symptoms are consistent with a facet mediated back pain from repetition of activities.”
[10] ARD page 103.
As to causation Dr Damodaran related the onset of the symptoms to an aggravation from his work with the respondent, the heavy nature of which had led to an exacerbation and aggravation of the facet-mediated back pain. He noted:
“Prof Miniter’s initial report does not provide any findings on the lumbar spine. I disagree with this opinion that this is unlikely to be related to the lumbar spine.”
Dr Damodaran agreed that the MRI findings of a disc prolapse and annular tear might
not necessarily indicate a work related injury, but the clinical history was the key in Dr Damodaran reaching his diagnosis.
Dr James Bodel
The medico-legal expert retained by Mr Sivankutty was Dr James Bodel, Orthopaedic Surgeon. He reported on 11 December 2020 and look a consistent history of the circumstances of the injury. He noted the initial diagnosis of greater trochanteric bursitis but noted further that the MRI scan of the lumbosacral spine showed pathology.
He noted the involvement of Dr Della Torre and Dr Damodaran, noting that Dr Damodaran’s opinion was that the “pain was mainly coming from the back complaint….”.[11]
[11] ARD page 92.
Dr Bodel noted that Mr Sivankutty was transferred to the Endoscopy Unit and had been back doing normal activities for the past three months, that is to say from September/October 2020. On examination Dr Bodel could find no evidence of nerve root irritability but there was mild tenderness over the greater trochanteric bursar and mild right sided limp. He examined the radiological evidence and the documentation before him.
He noted Dr Damodaran’s view that there was quite “significant right sided paraspinal pain following a heavy work injury at Concord Hospital”. He noted that x-rays and other tests were consistent with the ongoing pathology that had been identified, and that the pathology had been caused by work. He noted that Mr Sivankutty was back at work on full duties and that the transfer away from the Dialysis Unit was appropriate, as that work was too heavy for him.
Dr Bodel noted the opinion of Dr Miniter that Mr Sivankutty had a “pain focused behavioural pattern”. Dr Bodel disagreed with that conclusion, noting that pathology was present even though it was relatively minor. The diagnosis given by Dr Bodel was of minor disc pathology at the lumbar sacral junction “and the greater trochanteric bursitis in the region of the right hip”. He said that the heavy work, particularly the work in the Dialysis Unit had caused the “aggravation, acceleration, exacerbation and deterioration of the underlying minor disease processes”.
Clinical notes
The clinical notes from Dr Sakthivel were also lodged and will be the subject of some comment when discussing the evidence.
Dr Paul Miniter
The respondent relied on the opinion of Dr Paul Miniter, Orthopaedic Surgeon. He first reported on 27 March 2020.[12] He noted the documentation forwarded by his retaining solicitors but he did not mention the proffered imaging that Mr Sivankutty said he and his wife offered in that evaluation.
[12] Reply page 1.
Dr Miniter took a history of an experience of right sided hip pain by the applicant in November 2019. The applicant pointed to the trochanteric region, but also said that he had buttock pain and some discomfort in the groin from time to time.
Dr Miniter took a history that after the pain began Mr Sivankutty had difficulty performing his normal activities and that he stopped work in early December. At the time of Dr Miniter’s first report, he had not recommenced.
Dr Miniter thought “this is an unreasonable time period”.
D Miniter noted the visit to India by Mr Sivankutty and that he had seen an orthopaedic surgeon whilst there (although Dr Miniter had doubts as to whether he had seen an orthopaedic surgeon).
Dr Miniter noted the MRI scan of “13” January 2020 of the right hip (I assume he meant 10 January 2020). He said that demonstrated a “significant labral tear with a significant area of chondral loss over the superior aspect of the acetabulum”. Dr Miniter said he had not seen the scan itself but there was no suggestion of a cam lesion. In his commentary Dr Miniter said the MRI tended to suggest that there was “osteoarthritic change affecting the right hip”.[13] This was “in its relatively early phases and the concurrence of the osteoarthritic change of the superior acetabulum and the adjacent undisplaced labral tear are indications of degenerative change”.
[13] Reply page 3.
Dr Miniter said “This is not a work related matter”. He gave a diagnosis of osteoarthritis of the right hip and said “it is certain that this matter would have occurred had he been at the workplace or otherwise”.
Dr Miniter thought that Mr Sivankutty was fit to return to his duties and noted that Mr Sivankutty “seemed surprised” when Dr Miniter asked him when he would return to work.
Dr Miniter concluded by saying:
“In my opinion, the change of the situation from one part of the history to another and the putative diagnosis of the L5-S1 disc has been causative of his current presentation cannot be sustained either by way of physical examination or by way of his original presenting features.”
In his second report of 22 May 2020, Dr Miniter said he had had access to the clinical notes of Dr Sakthivel and noted that Mr Sivankutty presented regularly to his GP for a multitude of issues. He noted that the ongoing hip pain appears to be an issue that has become more prominent in the latter part of 2019, and that it had been particularly mentioned on 14 December 2019 and in subsequent consultations.
Dr Miniter had available Dr Della Torre’s first report of “1 April 2020” (I assume he meant 7 April 2020) and he noted that Dr Della Torre could not find the features of right hip irritability that had been found by Dr Miniter on 27 March 2020. Dr Miniter said “there were definite though subtle” indications of hip irritability, but there were no complaints at all relating to the back.
Dr Miniter noted that there had been an MRI scan in India of the lumbar spine, followed by a further lumbar spine MRI on his return to Australia. Dr Miniter thought that the findings on the MRI scan of the lumbar spine on 27 April 2020 were “extremely subtle” and that there was a suggestion that there had been annular tear. Dr Miniter noted that there were no features of nerve root compression. He said:
“I return you to the history in this case whereby there is no evidence that he has had an injury at any time”[14].
[14] Reply page 7.
Dr Miniter offered further observations. He said that there had been no injuries at any time and that there was a suggestion in the notes that Mr Sivankutty might have gout.
He said that Mr Sivankutty “presented in a very anxious fashion”. He thought that when he first saw Mr Sivankutty that there were signs of hip irritability, notwithstanding that they were “subtle”. He thought that if Dr Della Torre did not find any such signs then it meant that his osteoarthritic hip had “settled down”, which followed the nature history of osteoarthritic change. Consequently Mr Sivankutty had had a “good outcome”. Osteoarthritis of the hip had a natural history of causing pain that was sometimes worse and sometimes better, but which did not follow any particular rhythm or reason, Dr Miniter said.
Dr Miniter urged that the matter needed to be “kept clearly in perspective”. The pathology was minor and was “likely to be” incidental. Dr Miniter said “it is not work related”[15].
[15] Reply page 7.
In his third report dated 5 June 2020, Dr Miniter answered specific questions from his retaining solicitors. He said that he noted the diagnosis from Dr Della Torre of lower back pain and that it was unrelated to Mr Sivankutty’s original presentation. Dr Miniter noted that there was no mention of lower back pain made to him on the first consultation. The putative diagnosis that the L5/S1 disc was causative of Mr Sivankutty’s current presentation could not be sustained, Dr Miniter said.
SUBMISSIONS
Mr Adhikary
Mr Adhikary submitted that the reports of Dr Miniter should be preferred. Mr Sivankutty’s presentation had been consistent, and had reported that his injury was to the right hip, which area he had indicated to Dr Miniter on examination. Mr Adhikary noted that an MRI scan had been taken of the right hip on 10 January 2020, and since the onset of Mr Sivankutty’s condition as reported to Dr Sakthivel on 11 December 2019, it was the right hip that had been investigated by ultrasound on 13 and 19 December 2019.
The clinical notes of Dr Sakthivel also indicated that the injury had occurred to the right hip. Mr Adhikary submitted that the first entry in the clinical notes on 11 December 2019, whilst indicating that the reason for the visit had been “back pain”, nonetheless indicated the site of pain as the right hip. Mr Adhikary referred to the subsequent entries in the clinical notes of 14 December 2019, 3 January 2020, 9 January 2020, 13 January 2020 and 16 January 2020, noting that they were all concerned with the right hip and that there was no mention of the back. It was not until 9 April 2020 that any investigation of the back was organised, and that followed the appointment with Dr Della Torre.
Dr Della Torre’s opinion on 7 April 2020 was the first suggestion that the pathology responsible for Mr Sivankutty’s symptoms had been caused by anything other than osteoarthritis in the right hip, as diagnosed by Dr Miniter. Whilst Dr Della Torre, on seeing the lumbar MRI scan of 27 April 2020, made a provisional diagnosis that the origin of Mr Sivankutty’s pain was a posterior annulus tear in the lumbar spine at L5/S1, Dr Damodaran discounted the relevance of the tear, saying that it could be related to Mr Sivankutty’s occupation or it could be age-related degenerative change.
Dr Bodel’s opinion did not resolve these inconsistencies, as he ascribed a diagnosis of both minor disc pathology at the lumbosacral junction, and greater trochanteric bursitis in the right hip. Dr Miniter’s view had been consistent that the origin of Mr Sivankutty’s pain had been osteoarthritis in the right hip, and I would, Mr Adhikary submitted, accept the force of Dr Miniter’s argument that Mr Sivankutty had only complained of pain in the hip, and not mentioned the back at all.
I would accordingly accept Dr Miniter’s view that the onset of Mr Sivankutty’s capacity was unrelated, as it was caused by the constitutional condition of osteoarthritis which was age-related, and which would have occurred at this time in Mr Sivankutty’s life in any event.
Mr Adhikary made some submissions in the alternative regarding the appropriate wage loss claimed, but in view of the acceptance of the respondent’s position notified to the Commission following the hearing there is no need to consider that issue.
Mr Halligan
Due to time constraints, Mr Halligan for the applicant lodged written submissions.
Mr Halligan submitted that I would accept the description of the duties that Mr Sivankutty was required to do as part of his employment. He referred to the dispute notice of 11 June 2020 which denied any complaint of back or buttock pain in December 2019, and alleged that the first complaint of low back pain did not occur until May 2020.
Mr Halligan referred to the entry in Dr Sakthivel’s clinical notes of 11 December 2019 that stated that the reason for visit was “back pain.” Mr Halligan referred to the opinion of Dr Della Torre, emphasising Dr Della Torre’s view that there had been a mistaken diagnosis of hip pain, when the origin of Mr Sivankutty’s pain was the lumbosacral spine. Following that opinion the first MRI scan taken of the lumbar spine disclosed pathology in the form of a posterior annular tear at L5/S1.
Mr Halligan also referred to the opinion of Dr Damodaran, submitting that he supported Dr Della Torre’s diagnosis.
With regard to the opinion of Dr Miniter, Mr Halligan noted the diagnosis of osteoarthritis of the right hip and that Dr Miniter was of the view that employment had not caused that condition. Dr Miniter’s comment that Dr Della Torre’s diagnosis was unrelated to his original presentation Mr Halligan described as “an indifferent and dismissive evaluation of the case”.
Mr Halligan referred to Dr Bodel’s opinion that the diagnosis was of disc pathology and trochanteric bursitis in the right hip, and that the cause of the symptoms had been the nature of the work Mr Sivankutty had been performing. Mr Halligan submitted that I would accept the concept that a claimant could suffer referred pain.
DISCUSSION
Dr Miniter’s view that Mr Sivankutty’s condition was unrelated to the nature of his employment does not withstand the briefest scrutiny. Dr Miniter alleged that when he first saw Mr Sivankutty he was only told about hip pain. This consultation occurred on 27 March 2020, before Mr Sivankutty had been referred to Dr Della Torre, whom he saw on 7 April 2020.
The entries in Dr Sakthivel’s clinical notes demonstrate that the emphasis on the treatment of Mr Sivankutty’s condition was the right hip. It was not until 7 April 2020 that the involvement of the lumbar spine was suspected as the origin of Mr Sivankutty’s hip pain.
Dr Della Torre explained that the appearance of the MRI scan of the right hip was not consistent with recent injury thereto, as the changes were shown to be benign and of long-standing. It was Dr Della Torre who recommended that an MRI scan of the lumbar spine be taken, and the results of the scan Dr Della Torre found to be significant.
The presence of the annular tear at L5/S1 Dr Della Torre thought was responsible for Mr Sivankutty’s symptoms, and he again pointed out that the imaging of the right hip in January 2020 did not indicate the involvement of the hip. There was no bone oedema, no stress response within the joint, no effusion or synovitis or other inflammatory changes demonstrated in the scan, which had been taken only four weeks after the injury. I accept Dr Della Torre’s opinion that the pathology found in the right hip was benign, quiescent, of long-standing and unrelated to the symptoms experienced by the applicant.
Dr Miniter’s response to Dr Della Torre’s opinion caused some misgivings. Having found on 27 March 2020 that the MRI scan of 10 January 2020 demonstrated in the right hip a “significant” labral tear with “significant” chondral loss over the superior aspect of the acetabulum, Dr Miniter he did not seek to defend that opinion when Dr Della Torre, with some precision and care, found that there was no sign of any recent involvement within the mechanism of the hip.
Dr Miniter’s response was that there were “definite though subtle” indications of hip irritability, which was hardly compatible with his description of “significant” pathology within the acetabulum.
Moreover, I do not accept Dr Miniter’s opinion that there had been a “change of the situation” regarding the history which led to the diagnosis of the L5/S1 disc involvement. Mr Sivankutty had been consistent in his complaints and, as I have indicated, the initial focus by his GP and the investigations undertaken was the right hip. It was not appreciated initially that there was an involvement in the lumbar spine.
Dr Miniter’s suggestion that the cause of the pain was osteoarthritis was commented on by Mr Sivankutty himself when discussing his case with Dr Sakthivel on 30 March 2020. The entry read:[16]
“..pt concern about his recent assessment by the work orthopaedic surgeon told it is OA.
never suffer from OAwant second opinion..”
[16] ARD page 215.
I would observe in passing that had there been pathological involvement of the right hip associated with osteoarthritis I would not have accepted Dr Miniter’s view that it would have happened at that time in Mr Sivankutty’s life in any event. I regard that opinion as somewhat speculative. Moreover, had the diagnosis of osteoarthritis been established, it did not follow that it was unrelated to Mr Sivankutty’s employment, as the nature of his work, so well described and unchallenged, would probably have aggravated the underlying condition.
Be that as it may, the appearance of the right hip in the 10 January 2020 MRI scan also militates against the finding suggested by Dr Miniter that Mr Sivankutty was suffering from osteoarthritis when he first saw Mr Sivankutty on 27 March 2020, but by the time Dr Della Torre saw him, about 10 days later, the osteoarthritic hip had “settled down.” I accept Dr Della Torre’s opinion that the MRI scan taken on 10 January 2020 showed no sign of osteoarthritis, and no involvement of the pathology identified there.
I do not find the opinions of Dr Della Torre, Dr Damodaran or Dr Bodel to be inconsistent. Each medical specialist agreed that Mr Sivankutty’s symptoms had been caused by pathology in the lumbar spine, with Dr Bodel also concurring, but also finding some greater trochanteric bursitis. The distinction made by Dr Damodaran was that the pathology seen on MRI of the lumbar spine did not necessarily indicate a work-related injury, but in Mr Sivankutty’s case, the clinical history satisfied him of the diagnosis. There is sufficient consensus to persuade me that Mr Sivankutty’s condition is compensable.
As indicated above, the applicant has indicated by email on 19 July 20 that he accepts the calculations contained in the respondent’s revised wages schedule which was also lodged following the hearing.
There will accordingly be an award for weekly payments. The claim for s 60 expenses may best be by a general order.
SUMMARY
Accordingly, the respondent will pay the applicant the total sum of $14,199.19 in respect of his claim for weekly payments, in accordance with the Revised Wages Schedule lodged by the respondent on 7 July 2021.
The respondent will pay the applicant’s s 60 expenses on production of accounts and/or receipts and/or HIC Notice of Charge.
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