Stephenson v Inghams Enterprises Pty Ltd
[2023] NSWPIC 70
•24 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Stephenson v Inghams Enterprises Pty Ltd [2023] NSWPIC 70 |
| APPLICANT: | Chris Stephenson |
| RESPONDENT: | Inghams Enterprises Pty Ltd |
| Member: | Jacqueline Snell |
| DATE OF DECISION: | 24 February 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims permanent impairment compensation payable under section 66 resulting from alleged injury sustained to his cervical spine and lumbar spine in the course of his employment with the respondent; deemed date of injury of 23 February 2015; the applicant alleges he sustained injury to his cervical spine and lumbar spine as a result of the nature and conditions of his employment with the respondent (including but not limited to injury sustained to his lumbar spine on 19 February 2008 and 23 February 2015); the respondent disputed the applicant sustained injury to his cervical spine and lumbar spine in the course of his employment with the respondent; the respondent argued in the alternative that in the event the applicant was found to have sustained injury to his cervical spine and lumbar spine, such injuries should not be assessed together for the purpose of ascertaining whole person impairment (WPI); Held – the applicant sustained injury to his cervical spine and lumbar spine in the course of his employment with the respondent, with the applicant’s employment with the respondent being the main contributing factor to injury; the deemed date of injury is 23 February 2015; the applicant’s claim for permanent impairment compensation is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for assessment of WPI resulting from injury sustained to his cervical spine and lumbar spine in the course of his employment with the respondent with deemed date of injury of 23 February 2015. |
| determinations made: | 1. The applicant sustained injury in his lumbar spine in the course of his employment with the respondent (including but not limited to injurious episodes affecting his lumbar spine on 2. The applicant sustained injury to his cervical spine in the course of his employment with the respondent. The applicant’s employment with the respondent is the main contributing factor to injury. The deemed date of injury is 23 February 2015. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 23 February 2015 (deemed) – Disease Body systems/parts: lumbar spine and cervical spine Method of assessment: whole person impairment 4. The documents to be reviewed by the Medical Assessor are: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attached documents; (c) Reply and attached documents, and (d) Application to Admit Late Documents dated 14 October 2022 and attached documents. |
STATEMENT OF REASONS
Background
At the time the applicant, Chris Stephenson (Mr Stephenson) allegedly sustained injury the subject of these proceedings he was employed by the respondent, Inghams Enterprises Pty Ltd (Inghams), working as a production hand/factory hand. Mr Stephenson is currently 47 years of age. Mr Stephenson alleges he sustained injury to his lumbar spine and cervical spine in the course of his employment with Inghams and makes the following allegation of injury:
“The daily nature and conditions of the applicant’s employment with the respondent, from the date of commencement of the applicant’s employment with the respondent, until 23 February 2015, the last date on which he performed such work. That gradual process of injury included aggravations to the applicant’s lumbar spine on 19 February 2008 and 23 February 2015.”
Mr Stephenson claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% whole person impairment (WPI) resulting from injury to the cervical spine and lumbar spine, with deemed date of injury of
28 February 2015.Mr Stephenson’s claim for compensation is declined and he has been issued with notice in which he has been advised of the decision to decline his claim for permanent impairment compensation. Such notice is issued in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Issues for determination
I understand the following issues to be in dispute:
(a) whether Mr Stephenson sustained injury to his cervical spine and lumbar spine as a result of the nature and conditions of his employment with Inghams, with deemed date of injury of 23 February 2015, including but not limited to injurious episodes affecting his lumbar spine on 19 February 2008 and 23 February 2015, and
(b) whether Mr Stepheson has sustained permanent impairment resulting from injury sustained to his cervical spine and lumbar spine in the course of his employment with Inghams, with deemed date of injury of 23 February 2015, including but not limited to injurious episodes affecting his lumbar spine on 29 February 2008 and 23 February 2015.
Procedure before the Personal Injury Commission
This matter came before me for preliminary conference on 30 August 2022. As
Mr Stephenson’s claim did not resolve on that occasion, it came before me again for conciliation/arbitration hearing on 17 October 2022. Mr Tanner of counsel appeared for
Mr Stephenson and Mr Stockley of counsel appeared for Inghams. Both counsels’ instructing solicitors were present. Mr Stephenson was present.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.
When it became evident the arbitration hearing would not conclude during the afternoon of 17 October 2022, I issued directions for the lodgement and service of written submissions by both parties. This has now occurred.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late documents dated 14 October 2022 and attached documents lodged on behalf of Inghams.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witness.
Findings and reasons
It is useful to summarise relevant evidence.
Statements of Mr Stephenson
Mr Stephenson provided two statements. His latest statement is dated 12 April 2022 and his initial statement is dated 26 August 2021. While Mr Stephenson stated he commenced employment with Inghams “in or around 2010” it is accepted he in fact commenced his employment with Inghams prior to this time. Relevant to his duties with Inghams,
Mr Stephenson stated:“The nature and conditions of my employment duties were very heavy and repetitive, including repetitive lifting, bending, pushing and bullying, and carrying 15 kg boxes of the frozen chicken meat, all performed at a rapid pace.
I did whatever was asked of me when I attended work. Generally, frozen chicken breasts would be brought in on a pallet from the storeroom in crates, which were stacked on to the pallet. The pallet contained about eight crates in a row, with six or seven crates high.
The pallets were placed on a spring loaded stand, which meant that the top of the crate would always be at about my shoulder height. I had to unstack each of the crates, which weighed about 12 kg to 15 kg each. They were on my right hand side, and I was in the corner of a room. I put the crate onto a track of rollers, which are transported the crate through a hole in the wall on the left of the stand. I worked in a very confined space. My buttocks were against the wall behind me, and I was twisting to my right to pick up the crate, to place the crate to my left onto the rollers. There was not enough room to get the job done. I could not move my feet properly, which meant I was twisting my back. The room was stacked with loads of pallets because there had to be room for the forklift to come in and out.
We had a job rotation every half an hour to one hour.
I sometimes rotated to an inspecting job. This required me to look down for prolonged periods of time, onto a low table. This caused considerable pain in my neck. Every time I looked up the stretch my neck, my supervisor would tell me that I had to keep watch on the conveyor belt, to perform the inspecting duties. We stood for hours at a time performing these duties, and this caused considerable pain in both my back and my neck.
At the end of the belt after inspecting, the chicken goes into a 100 kg stainless steel bin, and part of our duties required us to push that bin about 50 m or 60 m to the next station. We would put the bin into a hydraulic slot, and then tip it over into a bigger bin this caused considerable strain on both my back and my neck. I was also required to work in the palletiser, where I would be required to stack pallets. Around 2014, my employer increased the number of rows on each pallet, which meant that I was stacking pallets above my head height. I was not given any machine or forklift to stack the pallets and did it by hand. This was on a repetitive basis, and we were always encouraged to do things at a faster pace. I was always criticised for not performing the work quick enough, and therefore felt pressured to work faster and faster.
In addition to the above duties, we would have to rinse out the bins, which weigh about 15 kg to 20 kg without any produce in them. This required us to tip the bin over the ground, and I suffered injury to my back on 19 February 2008 while performing this task.”
Mr Stephenson explained that after he sustained injury to his back on 19 February 2008 he suffered various flare ups of his back consequent on the nature and conditions of his employment, followed by a further incident occurring on 23 February 2015. Mr Stephenson said of that particular occasion:
“I was bending down to lift empty plastic crates from a waist high bench, so that I could put them down to ground level. I was doing this on a repetitive basis on 23 February 2015, when I suddenly felt pain into my lower back, radiating to my left thigh”.
Mr Stephenson said that he ceased work on 23 February 2015 and has not been able to return to work since then. As of 26 August 2021, Mr Stephenson said his back and neck remained symptomatic.
Claim forms
In a worker’s injury claim form dated 1 August 2016, Mr Stephenson made a claim for workers compensation resulting from injury sustained on 23 February 2015 in the course of his employment with Inghams. Mr Stephenson described injury in the following terms:
“Very sore, fatigued, aching, tight neck, shoulders/in-between shoulder blades, back of legs and knees.”
Mr Stephenson described circumstances of injury in the following terms:
“Putting 2 crates on ground, whilst bending causing prolapsed disc and pinched nerve.”
In response to specific questioning as to whether Mr Stephenson had previous injury that related to the current condition, Mr Stephenson responded:
“Yes. Prolapsed disc and pinched S1 nerve root, radiating pain to back of legs and knees up to neck shoulders upper spine.”
In a permanent impairment claim form dated 2 April 2020, Mr Stephenson made a claim for permanent impairment compensation payable for 17% WPI resulting from injury sustained to his neck and back with the date of injury noted as 23 February 2015. The claim form does not specifically provide provision for the date of injury to be noted as a “deemed” date of injury. In making his claim for permanent impairment compensation Mr Stephenson relies on a report dated 10 December 2018 prepared by Dr Oates in his capacity as independent medical examiner (discussed below).
Treating medical evidence
Mr Stephenson has come under the general medical care of Dr Kalansingham, Dr Orr and
Dr Won, Erina Fair Medical Centre. He has come under the specialist care of Dr Preston, rheumatologist. He has received orthopaedic treatment from practitioners at the North Shore Spinal Clinic and has received medical treatment at Gosford Hospital. He has received physiotherapy treatment from practitioners at Central Coast Community Health. Medical information relevant to treatment provided to Mr Stephenson by these treating practitioners and Gosford Hospital is in evidence.Neither Mr Tanner nor Mr Stockley have made any submissions relevant to the treating medical evidence, but both drew my attention to the evidence provided by the independent medical examiners who had the opportunity to assess Mr Stephenson.
While in such circumstances I do not propose to fully canvass the treating medical evidence here, save for the clinical records relevant to Mr Stephenson’s presentation at Gosford Hospital as these clinical records are fundamental to opinion provided by Dr Potter in his capacity as independent medical examiner on causation, I confirm that in determination of
Mr Stephenson’s claim I have carefully reviewed and considered the treating medical information in evidence.
Erina Fair Medical Centre
The clinical records of Erina Fair Medical Centre are in evidence, and it is evident that
Mr Stephenson’s neck was symptomatic prior to the incident occurring on 23 February 2015 in that a medical certificate dated 20 March 2014 referred to Mr Stephenson suffering a “crick in his neck”. It is also evident Mr Stephenson has consulted the doctors practising out of the medical centre since 24 February 2015, being the day after the alleged incident occurring on
23 February 2015, which is consistent with the histories provided by Mr Stephenson to a number of the independent medical examiners, including Dr Smith and Dr Potter. There are letters of referral dated as early as 2 March 2015 relevant to the medical management of
Mr Stephenson’s low back and left leg symptoms. There are letters of referral dated as early as 19 February 2016 relevant to the medical management of Mr Stephenson’s neck symptoms.
Gosford Hospital
The clinical records of Gosford Hospital that are in evidence are not complete. A number of the pages are not numerically consecutive and a number of pages, in what appears to be a numerated bundle of pages, are missing.
Relevant to Mr Stephenson’s presentation at the Emergency Department on
24 February 2015 it is relevantly recorded:“presenting with left buttocks pain radiating down to mid anterior thigh since Saturday
Woke this morning in increased pain with numb sensation to left lateral foot.
Denies lumbar back pain
Took dolocid last night for pain but was woken up during the night in pain.
Recent flair up of lumbar back pain in the past 2 weeks
Hx degenerative disc lumbar back pain and arthritis.”
Relevant to Mr Stephenson’s discharge form the Emergency Department the same day, it is relevantly noted:
“presents with worsening of left buttock and leg pain this morning.
Poor mobility secondary to pain. Complains of altered sensation in left foot.
…
Reports that over the last 2 weeks there has been an exacerbation of his lower back pain.
Has been taking anti-inflammatories and applying heat packs.
Back pain now somewhat improved. This is the first episode of buttock/leg pain.
Background history of chronic lower back pain – previous imaging shows degenerative changes
Works in a factory.”
An assessment document with referral date of 5 March 2015 and referral receipt date of
6 March 2015 noted a current history and treatment in the following terms:“Approx 9/52 ago flexion related LBP onset (work … casual processor at Ingham’s chickens) … onset left posterior thigh and calf/lateral foot pain and paraesthesia (initially severe (ED presentation) but has settled since. No longer painful but numbness remains. Not a workers compensation claim … casual employment; hasn’t returned there …”
A physiotherapy review by Susan Pepper on 6 January 2017 in part noted Mr Stephenson underwent L5/S1 discectomy on 16 September 2016 and a current history in the following terms:
“Onset of LBP & (L) pain February 2015 at work while bending & twisting to the left to place an unloaded plastic tray on the floor. Reports 3 years of increasing stiffness of the thoraco-lumbar spine aggravated by working in flexed positions at the chicken processing plant prior to injury…
Pre-op pain distributions was (L) buttock, post thigh, post knee, lateral calf with decreased sensation (L) lateral calf ankle & sole of foot laterally.
Was treated with guided injections x 3 which provided temporary relief.
Reports improvement of symptoms post-op, is able to stand erect comfortably, improved sensation post/lat thigh, no change to numbness lateral ankle & foot.
C/O ongoing discomfort thoracic area & shoulders which pt feels is work related.”
In a report dated 28 November 2019, Dr Celador, under whose care Mr Stephenson has come for pain management noted Mr Stephenson suffered persistent low back pain.
Mr Stephenson’s reported pain history included reference to the nature and distribution of
Mr Stephenson’s back pain having not changed since he came to surgical treatment in the nature of L5/S1 discectomy in 2016 under the care of Dr Vasilli at Royal North Shore Hospital. Dr Celador described Mr Stephenson as having sustained a “work-related injury 5 years ago” with subsequent ongoing litigation.
INDEPENDENT MEDICAL EVIDENCE
Dr Edwards
Mr Stephenson was assessed by Dr Edwards in his capacity as independent medical examiner. Dr Edwards is a general surgeon. Dr Edwards provided a report dated
17 July 2015. Dr Edwards’ report is focused on the alleged injury of 23 February 2015.
Dr Edwards recorded the following history:“He said he suffered an injury at work on Monday, 23 February 2015. He said he was ‘pretty sore before that happened’ and indicated that he had a long history of pain going from the back of his calves and legs to his buttocks. He said the symptoms had been getting worse for the last two or three years but said he had never been to see a doctor about them. He said usually his symptoms would settle after a weekend at home, and he could return to work on the Monday.
On this occasion, on Monday, 23 February 2015, Mr Stephenson went to work as normal at 6.00am. At about 7.00am he lent to his left side to put an empty crate on the ground, and said he noted sharp stabbing pain at the back of his left leg, which worsened. He said he ceased work and told his supervisor.”
Dr Edwards noted Mr Stephenson’s symptoms:
“Mr Stephenson has symptoms and signs consistent with a left L5/S1 disc protrusion causing a left S1 radiculopathy. The left ankle jerk is absent. The left calf was 0.5cm less in circumference than the right. He has what appears to be a contrived limp.”
Dr Edwards provided opinion on causation:
“Mr Stephenson gives a history of some years of back pain. The information in the medical file does not suggest the incident described resulted in a disc protrusion. It appears he had several days off in a week prior with similar symptoms.”
In response to specific questioning as to whether Mr Stephenson’s employment is a substantial contributing factor to injury, Dr Edwards said:
“In my opinion, Mr Stephenson’s employment is not a substantial contributing factor to his back complaint. I have considered section 9A, and it is probable the injury or a similar injury would have happened anyway at or about the same time of his life, whether or not he was at work.”
In response to specific questioning as to whether Mr Stephenson sustained injury in the nature of an aggravation of a pre-existing condition, Dr Edwards said:
“I do not think Mr Stephenson has aggravated a pre-existing condition as a result of his employment. The disc protrusion does not appear to have occurred in the course of his employment.”
Dr Edwards provided no comment in relation to Mr Stephenson’s alleged cervical spine injury.
Dr Mendelsohn
Mr Stephenson was assessed by Dr Mendelsohn in his capacity as independent medical examiner. Dr Mendelsohn is a general surgeon. Dr Mendelsohn provided two reports dated 14 December 2015.
Dr Mendelsohn provided a history of injury in the following terms:
“On 19 February 2008, Mr Stephenson was in the process of emptying a bin in the course of his work at Inghams. He was bending over and tilting a stainless steel tub with some water in the bottom. It was quite difficult and needed a large amount of force and he developed pain in his lower back as he was doing this. He said that he had difficulty in straightening up.
He reported this injury at work and was off work for approximately 4 to 6 weeks following this incident. An MRI scan was carried out and he had a course of physiotherapy. He said at the time he had trouble lifting up his legs although there was no pain or numbness. There was just weakness.
He returned to work on light duties and shortly after this returned to his normal duties. He said that at this time he had no pain and no weakness. He continued with his normal duties without major problems apart from a temporary acute aggravation during the course of his duties with various minor straining incidents. The work involved such tasks as heavy pushing and pulling, leaning and tilting boxes of frozen chickens on a constant basis and lifting them up in the air and also placing them on the ground. He had a gradual increase in pain in his low back and in both buttocks and the back of both thighs. He said that his work involved constant repetitive lifting and straining and was carried out on a very rapid basis. The lifting and straining was often at or above bench level. He constantly had to stretch out to pick up boxes.
Mr Stephenson continued to work but the pain gradually increased. He had pain in the back of his neck and headaches as well and on some days he had to take time off work because of the pain. From time to time he would have exacerbations of pain in both legs.
Nevertheless, despite his ongoing problems, he continued at work until a further incident occurred on 23 February 2015.
He said that on this date, he did a short warm up before starting work. He carried out his usual duties which involved putting crates down from the bench to the ground. As he was bending down and doing this he felt a sudden severe pain in his low back and his left thigh. The area became very heavy and tight. He had severe pain in his lower back.
He reported the incident to his supervisor. He went home to rest and when he got up the next morning, his pain was so severe that his mother took him to Gosford Hospital.”
Dr Mendelsohn provided response to Dr Edwards’ report:
“I would disagree with the report quite markedly. I believe there is a direct causal relationship between the development of his lumbosacral disc prolapse with S1 radiculopathy on the left side. I do not dispute Dr Edwards’ contention that this problem may have arisen even had he not been carrying out the work that he did at Inghams. However, this does not allow dismissal of the fact that he was working at Inghams, and he was doing work which put considerable strain on his back over a long period of time. The prolapsed disc may have occurred in the incident in February 2015 or may have been part of an ongoing process, eventually causing severe enough symptoms to cause a radiculopathy. However, nature and conditions of his work at Inghams together with the incident, especially in February 2015 has undoubtedly been a significant aggravating factor if not the main factor in the development of his problem and the causation of his symptoms. I do not dispute that there may be an underlying degenerative process but nevertheless, a major aggravation, in the least, has been caused by the nature and conditions of his work together with the particular incident in February of 2015. I feel therefore that there is a direct causal relationship between his disabilities and the employment that he was carrying out at Inghams.”
Dr Smith
Mr Stephenson was assessed by Dr Smith in his capacity as independent medical examiner. Dr Smith is an orthopaedic surgeon. Dr Smith provided a report dated 22 November 2016.
Dr Smith recorded the following history relevant to the injury allegedly occurring on
19 February 2008:“He worked at Inghams chicken factory in Lisarow on a casual basis doing 10 – 40 hours per week. It was quite variable. He has done the job for about 11 years.
There is a problem dating back quite a number of years, perhaps seven or eight years now.
He can recall being bent over a steel bin to clean it and as he got up, he was stuck in a bent position.
He saw a doctor and had physiotherapy at a local medical centre which was paid for by Inghams and after two or three months, he recovered.”
Dr Smith also recorded the following history relevant to the incident allegedly occurring on 23 February 2015:
“On that day, he had just emptied a crate of chicken parts into a container and had two empty plastic bins, the weight of which he is not sure. He put those down on the ground bending over to his left to put the crates down and then when he stood up, there was very severe pain in the lower back running down the left leg in the posterior thigh to the knee.
He said that this was a very severe pain that he had not had before and he thought he might have torn a hamstring. It was of very sudden onset. He reported his condition and the supervisor suggested he go and see a doctor.
…
He did see a doctor at the Gosford Hospital not long after the incident on 23 February 2015 …”
Dr Smith noted Mr Stephenson’s complaints also included neck pain, which dated back to the incident occurring on 19 February 2008 and continued after the incident occurring on
23 February 2015.Dr Smith accepted Mr Stephenson would have been “likely to have been having symptoms off and on ever since the initial onset some seven or eight years ago in the neck and the lower back pain” and relevantly provided opinion as to the cause of injury sustained by Mr Stephenson to his cervical spine and lumbar spine:
“This man would appear to me to have a symptomatic cervical and lumbar degenerative disease. He has a Schmorl’s node at the bottom end plate of L3. He has Scheuermann’s disease as well with a degenerative process superimposing.
It would appear to me there have been aggravations to a complex of abnormalities in the lumbar spine for some seven or eight years and the episode of 20 February 2015 (sic) would appear to be yet another aggravation.
…
In my opinion, based on his radiology of 27 February 2015, there is no lesion present in his lumbar spine that was a result of the trauma that occurred on 22 February 2015 [sic].”
Dr Dowda
Mr Stephenson was assessed by Dr Dowda in his capacity as independent medical consultant. Dr Dowda is an occupational physician. Dr Dowda provided a report dated
6 March 2017. Dr Dowda recorded the following history:“He joined Inghams in 2003 and remained with them through until the time of his injury which was in 2015. Therefore he was there approximately 12 years. He said that the work that he did at Inghams was at any station on the process line for chicken preparation at Inghams, though he was never permanent, rather he was a casual employee for all that time working as low as 20 to 25 hours per week or up to 35 to 40 hours a week depending on the needs of the company.
He had his accident on 23 February 2015 at work and has not worked at all since that time. He described being on job search with Centrelink and reviewed every three months in this respect and he has an unsettled workers compensation claim related to this injury.
Mr Stephenson told me that he had problems over a few years with neck pain recurring regularly but the event that was the most significant in his current presentation was on 23 February 2015 at work when he was taking trays off the production line rotating to the left twisting and placing trays onto concrete when he suddenly experienced severe pain in his lower back in the midline and pain at the same time going all the way down his left lower limb to his left foot. He was sent home from work at that time and when he got up the next morning he was in severe pain in his lower back and in his left lower limb.”
Following clinical examination, and review of diagnostic imaging dated 7 August 2015 and
22 October 2015, in response to specific questioning, Dr Dowda accepted Mr Stephenson’s presentation at that time would interfere with his capacity for pre-injury employment. While it is evident Dr Dowda accepted Mr Stephenson suffered significant lumbar spinal disability at the time of assessment he said he had not identified “clinically significant cervical spinal disability” at the time of assessment.
Dr Oates
Mr Stephenson was assessed by Dr Oates in his capacity as independent medical examiner. Dr Oates is an occupational physician. Dr Oates provided reports dated 10 December 2018 and 20 July 2021.
Turning first to Dr Oates’ initial report. Dr Oates recorded the following history:
“He said he worked at Inghams as a production worker on a dayshift. His work was heavy, involving repetitive lifting, bending, pushing, pulling and carrying 15 kg boxes of frozen chicken meat, all performed at a rapid pace. He also had to lift the incoming 15 – 20 kg trays of raw meat before processing.
He developed gradual onset of tightness and discomfort in the neck and trapezius muscles from prolonged leaning over a low set bench at work, sorting chicken meat in front of him with his arms outstretched.
He said on 19 February 2008, he was emptying 50 kg stainless steel tub of water on wheels. The tub normally contained 200+ kg of chicken meat inside. The meat was out of the tub, but he had to empty the waste water from the tub into a drain.
As he tipped the tub onto one side whilst bending over to a low level at the waist, he developed pain in the lower back with the effort of bending and lifting the tub to tilt it and then he could hardly straighten up his back afterwards.
After this, he was off work for four – six weeks and had physiotherapy and anti-inflammatories. He was having difficulty lifting his legs because of weakness but there was no pain or numbness. The left leg was worse than the right. He then went back to work on light duties, working at bench level on the line, picking out the off pieces of meat for discard for six weeks, and then gradually went back to normal duties. He then had a gradual increase in low back pain, radiating to both buttocks and posterior thighs, as well as continuing neck pain and headaches and neck stiffness because of the repetitive heavy nature of his normal work duties. He continued to work in this way until 23 February 2015, when he was bending down to lift empty plastic crates from a waist–high bench down to ground level on a repeated basis. His lower back and left thigh became painful, and the left leg felt heavy and stiff. He reported the incident. He went to Gosford Hospital and had an analgesic injection with benefit.”
Dr Oates provided the following opinion:
“Chronic tissue strain (musculoligamentous) of the cervical spine and adjacent upper trapezius and shoulder girdle area bilaterally, with secondary muscle wasting about the shoulder girdle through disuse secondary to pain inhibition; left posterolateral L5/S1 disc protrusion with left S1 nerve root compression for which he underwent left L5/S1 discectomy and rhizolysis, and he is left with a post-operative left S1 radiculopathy affecting the lower extremity.”
Dr Oates considered:
“In the case of the cervical spine soft tissue injury, I consider that the nature and conditions of employment was the main contributing factor by way of aggravation of pre-existing, previously asymptomatic degenerative condition of the cervical spine.
I consider that the nature and conditions of employment with Inghams was the main contributing factor to the lumbar spine injury by way of aggravation of a pre-existing previously asymptomatic degenerative condition of the lumbar spine, along with a specific incident of heavy lifting and pushing whilst in a low bend over position on
19 February 2008, which most likely initiated a left posterolateral L5/S1 disc protrusion whose symptoms continued at a low level for the next several years, until the nature and conditions of work involving prolonged stooping, regular bending to low levels and lifting caused an acute aggravation of the posterior lateral disc protrusion, with frank left leg sciatica pain as a result of a left S1 radiculopathy, which resulted in the need for hospitalisation and eventual discectomy and rhizolysis surgery.”Turning next to Dr Oates’ subsequent report.
Relevant to alleged injury sustained on 23 February 2015, Dr Oates said:
“… I consider that the injury of 23 February 2015 has caused an acute exacerbation to your client’s lumbar spine condition because, although bending repetitively was involved but not heavy lifting on this occasion, there was an acute onset of increased pain in the low back and left thigh, and then the left leg felt heavy and stiff.
A CT scan was performed a few days after, showing a left posterolateral L5/S1 disc protrusion displacing the left S1 nerve root, which is beginning to be concordant with the symptoms of which he complained.
Therefore, I consider that the incident of 23 February 2015 has contributed to your client’s lumbar spine condition and did not resolve, because after an initial analgesic injection which gave temporary benefit to the pain symptoms, he underwent physiotherapy without benefit, a CT guided injection to the spine which in fact made the leg left sciatic symptoms worse with increasing numbness, and resulted in his eventually undergoing surgery to decompress the left S1 nerve root in September 2016.”
Relevant to alleged injury sustained on both 19 February 2008 and 23 February 2015,
Dr Oates said:“… I do consider that the pathology arising from nature and conditions of work and the frank injury of 19 February 2008 does represent the same the pathology, namely left sided L5/S1 disc protrusion with irritation progressing to frank compression of the left S1 nerve root.
… the incident of 23 February 2015 represents, in my view, part of the nature and conditions of his work rather than being a specific injury, notwithstanding the fact that symptoms which had existed since the original injury of 19 February 2008 were acutely exacerbated.
Symptoms which persisted after the injury of 19 February 2008, namely back pain and left leg symptoms, are similar to those experienced as continuing from that date and then acutely exacerbated after 23 February 2015.”
In response to specific questioning relevant as to whether it is appropriate to apportion impairment of the lumbar spine resulting from injury on 19 February 2008, injury on
23 February 2015 and “the heavy and repetitive nature and conditions of our client’s employment duties”, Dr Oates explained:“Because I believe that the injury of 19 February 2008 initiated the pathology of left sided L5/S1 disc protrusion, which was then exacerbated by employment activity on
23 February 2015, and in the meantime was also gradually worsened (accelerated and deteriorated) by the heavy and repetitive nature and conditions of your clients work, noting that the pathology was not changed by the incidents and the nature and conditions of work – remaining L5/S1 disc protrusion with left S1 nerve root irritation progressing to compression, and implying the principles of Emed v Barnes [sic], there is no indication to apportion the impairment between these three factors enumerated at 5(a), 5(b) and 5(c) above. This is because these multiple factors involved events to the same body system, causing the same pathology.”
Dr Potter
Mr Stephenson was assessed by Dr Potter in his capacity as independent medical examiner. Dr Potter is a rheumatologist. Dr Potter provided a report dated 22 December 2020 and
2 February 2021.Turning first to Dr Potter’s initial report, Dr Potter recorded:
“… he is able to identify three different areas of pain:
1.Head, neck, and shoulders
2.Back and buttocks
3.Left leg.
From his point of view, they can occur separately.
The main injury date is given in which he maintains he had back and left leg pain but prior to this, he had had one to 2 years of pains before, not seeking medical care.
This episode of precise injury took place some six years ago in February. The nature of work was to sort chickens at Inghams on a line. He had done that job casually for 11 years. It was a pick and pack and inspection line.
He insists he never had any severe back pain prior but the usual duties were picking and packing, transfer and moving pallets.
On this day in February 2015, he had to move and transfer crates, leaning over and in so doing he could not straighten up and developed back pain and left leg pain. The intensity of pain was ‘agony.’ The left leg pain was ‘all the way to the foot’.
Thereafter followed a sequence of back pain and leg pain, GP surveillance, time off work, specialist care and injection therapy. He cannot remember all the sequences but recognises surgery followed at Royal North Shore Hospital. He has not returned to work since and has no further medical plan.”
Following clinical examination, Dr Potter concluded:
“This man is left with permanent incapacity of the lumbar spine with residual chronic left leg radicular features and a chronic L5/S1 lesion giving rise to a chronic S1 neuropathy.
The history from the patient is this has come post-work incident 23 February 2015.
Comment: I cannot see this in the treating doctor’s remarks but I am obliged as an IME to accept the patient’s history of the date of incident until proven otherwise.
I recognise there may be some confusion in that regard and potential discrepancy in that regard but I accept the patient’s history.”
In response to the question asked of him, “we are firstly interested in your views whether he suffers from any injury to his back and concerning whether this alleged back problem could probably be said to have anything at all to do with his employment with our client either on
19 February 2008, 23 February 2015 or at all”, Dr Potter said:“My answer is I am obliged to accept the patient’s history that a particular incident occurred on 23 February 2015 at work. Subsequently he then had surgery for back and left leg pain, classified as a left S1 neuropathy.”
In response to the question asked of him “we are particularly interested in your views concerning whether his employment could be said to be a substantial contributing factor to injury” Dr Potter said:
“On the basis of the history from the patient and not disputed by any other treating doctor’s remarks, I have to accept this as being work injury probable.”
Turning next to Dr Potter’s subsequent report. Dr Potter referred to a note dated
27 February 2021 provided to him by Ingham’s solicitors which is not in evidence. Dr Potter also referred to the note referred when requested to review his opinion “particularly since the clinical records at Gosford Hospital mentioning 24 February 2015” which are in evidence.
Dr Potter wrote:“… I do agree I have reviewed the notes at the Gosford Hospital 24 February 2015 indicating again, as noted prior, ‘Pain left buttock down to the thigh coming on Saturday, waking in the morning’.
But the other entry is ‘recent flare up of lumbar back pain over the past two weeks.’
There is no mention made of any work-related pathology. There is no mention made of any sudden onset or worsening or deterioration in the worksite. There is no mention made of any other acute episode at work being causative or aggravating factor.”
In conclusion Dr Potter said:
“It follows therefore that although the pathology is obvious, that is back pain with radicular features requiring surgery and although I am obliged to initially accept the patient’s history that it occurred in the worksite, it would appear that the history provided at the hospital to the staff in that regard at Gosford did not mention work injury, did not mention any work-related pathology and did not mention any aggravation but did mention prior back pain.
It follows therefore that the suggestion by the patient that an injury at work is not supported by the hospital notes so provided.
Thus, it may well be the episode occurred as stated by the patient but the suggestion by the patient is not supported by the medical data in the hospital notes.”
In response to a question asked of him, “on the basis of these clinical records, we would appreciate your view concerning whether it is more probable than not that the onset of the claimant’s low back pain of which he presently complains is attributable to what ever occurred on 21 February 2015 rather than anything allegedly occurring on
23 February 2015”, Dr Potter wrote:“The answer therefore is that although the pathology is clear and although the patient maintains it came at the worksite, that is not supported by any other information thus far and would suggest that these factors may have come not from the workplace injury.”
In his initial report Dr Potter noted that he had reviewed a CT scan of Mr Stephenson’s cervical spine dated 7 August 2015 which he said demonstrated no neck injury but “normal-for-age findings” and noted Mr Stephenson’s complaints included pain in his neck. Other than that, Dr Potter makes no other reference to Mr Stephenson’s neck/cervical spine.
Submissions
Mr Tanner and Mr Stockley provided written submissions, which I have carefully considered. I am grateful to counsel for the assistance provide to me in this matter. Counsels’ submissions are available to the parties and not reproduced here.
DETERMINATION
Injury
I am required to determine whether Mr Stephenson sustained injury to his cervical spine and lumbar spine as a result of the nature and conditions of his employment with Inghams, with deemed date of injury of 23 February 2015, including but not limited to alleged injurious episodes affecting his lumbar spine on 19 February 2008 and 23 February 2015.
Mr Stephenson has the onus of proving such allegation.While it has been made clear in the decision of Toplis v Coles Group[1] the term ‘nature and conditions’ is not a term used in the NSW workers compensation legislation, it must be remembered that in Mirkivoic v Davids Holdings PL[2] the Court said:
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint.’ My colleague Burke J has frequently referred to it as a ‘meaningless concept.’
It is used in this place [the then compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, eg repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity.
Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within s 15 of the Act (where pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within s 16.”
[1] [2009] NSWWCCPD 70.
[2] (1995) 11 NSWCCRD 656.
While it may be there is admonishment for the use of the term ‘nature and conditions of employment’ as a means to abbreviate the circumstances of injury alleged by an injured worker, it is a fact, as acknowledged by Neilson J above and the Court of Appeal on occasion (see Switzerland Insurance WC (NSW) Ltd v Burley;[3] Wyong Shire Council v Paterson[4]), that the expression is commonly used in the NSW workers compensation area of law.
[3] [1996] NSWCA 512.
[4] [2005] NSWCA 74.
Whether Mr Stephenson sustained injury to his cervical spine and lumbar spine as a result of the nature and conditions of his employment with Inghams is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[5] the Court stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the actual existence of that fact.”
[5] [2008] NSWCA 246 (Nguyen).
I consider it is also helpful to note that in Malec v JC Hutton Pty Limited[6] the Court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain, if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
[6] [1990] HCA 20.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment. In the circumstances of this particular matter it is important to note that while
s 4 must be read together with s 9A of the 1987 Act (which essentially provides no compensation is payable under the 1987 Act in respect of injury if the employment was not a substantial contributing factor), s 4 also includes injury in the nature of a disease injury (which relevantly means the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease). The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[7] with comment that the test of “main contributing factor” is one of causation that involved consideration of the evidence overall.[7] [2020] NSWWCCPD 9.
Relevant to this issue of causation of the injury Mr Stephenson alleges he sustained to his cervical spine and lumbar spine in the course of his employment with Inghams, it must be remembered that in Kooragang v Cement Pty Ltd v Bates[8] the court said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the parties of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of a causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[8] (1994) 35 NSWLR 452; 10 NSWCCR 796.
It is common ground that Mr Stephenson commenced employment with Inghams prior to 2010 (possibly as early as 2003) and there is no evidence to suggest that Mr Stephenson’s work duties were other than heavy and repetitive in nature as alleged by Mr Stephenson.
Mr Stephenson said that his work duties caused considerable strain on both his back and his neck. Mr Stephenson explained that he sustained specific injury to his low back on
19 February 2008 while he was rinsing out empty bins, which he estimated weighed between 15kg to 20kg. Mr Stephenson explained that after this particular incident occurring on
19 February 2008 he suffered various “flare ups” of back symptoms due to the nature and conditions of his work duties. Mr Stephenson explained on 23 February 2015 he sustained further specific injury to his low back while he was repetitively bending down to lift empty plastic crates from a waist high bench on to the ground. Mr Stephenson said on this occasion the pain he felt in his low back radiated down into his left thigh.While Mr Stephenson said his work duties included rotation into an inspecting role, which one might consider required less arduous work than required of his usual role, Mr Stephenson said his inspecting duties required him to look down onto a low table while standing for hours at a time, which caused him pain in both his back and neck.
Mr Stephenson made a claim for workers compensation specific to the incident occurring on 23 February 2015 and described the injury he had sustained in terms of “very sore, fatigued, aching, tight neck, shoulders/in-between shoulder blades, back of legs and knees”.
As noted, neither Mr Tanner nor Mr Stockley made any submissions relevant to the treating medical evidence, but both drew my attention to the evidence provided by the independent medical examiners who had the opportunity to assess Mr Stephenson. This said, it is evident from the clinical records of Erina Fair Medical Centre that Mr Stephenson has sought treatment from the doctors practising out of the medical centre for the symptoms he has suffered in his neck and his low back. It is also evident from the clinical records of Gosford Hospital that Mr Stephenson presented at the Emergency Department on 24 February 2015 with acute symptomology in his left buttock and left leg with a history of “worsening of left buttock and leg pain this morning”. At the time of this presentation, the hospital noted Mr Stephenson worked in a factory and while there may be no specific mention of an incident occurring at work the day before, being 23 February 2015, I am mindful that an assessment document with referral date 5 March 2019 recorded a history of Mr Stephenson suffering an onset of low back pain with reference to Mr Stephenson being a ‘casual’ process worker at Inghams and the matter not being the subject of a workers compensation claim. At physiotherapy review on 6 January 2017, Mr Stephenson’s treating physiotherapist likewise noted Mr Stephenson was suffering an onset of low back pain (with left leg pain) in February 2015 in circumstances reported in the same terms as those occurring on 23 February 2015. While I accept there is no evidence or submission to this effect, it occurs to me that Mr Stephenson may have failed to make mention of the incident occurring at work on 23 February 2015 when he presented at the Emergency Department on 24 February 2015 as he was under a misapprehension that as a ‘casual’ process worker with Inghams he would not be afforded protection under the workers compensation legislation for any injury he sustained in the course of his employment with Inghams.
In his report dated 17 July 2015, while primarily focused on the injury Mr Stephenson allegedly sustained to his low back on 23 February 2015, Dr Edwards reported that
Mr Stephenson told him that he was “pretty sore before that happened” with a long history of pain from his back radiating into buttocks and lower limbs. Dr Edwards reported
Mr Stephenson told him that his symptoms had been worsening over the last two or three years but tended to settle over the weekend which allowed him to return to work on Monday. In his report referred, Dr Edwards provided no comment about Mr Stephenson’s neck.While I accept reliance by the applicant on the report dated 14 December 2015 prepared by Dr Mendelsohn may offend regulation 44 of the Workers Compensation Regulation 2016 in so far as reliance on Dr Mendelsohn’s opinion is concerned (although in this regard I note
Dr Mendelsohn and Dr Oates do not share the same medical specialisation), I believe I can perhaps note Dr Mendelsohn recorded a history that Mr Stephenson’s work duties with Inghams “put considerable strain on his back over a long period of time”. In his report referred Dr Mendelsohn provided little comment about Mr Stephenson’s neck but noted that
Mr Stephenson suffered pain in his back and neck after his return to work following the incident occurring on 19 February 2008.In his report dated 22 November 2016 Dr Smith noted Mr Stephenson had worked for Inghams for “about 11 years”. Dr Smith noted Mr Stephenson suffered low back pain in the incident occurring on 10 February 2008 from which Dr Smith said Mr Stephenson had recovered after consultation with a doctor and physiotherapy treatment. Dr Smith described Mr Stephenson’s complaints of neck pain as also dating from the incident occurring on
19 February 2008. Dr Smith accepted Mr Stephenson suffers an underlying degenerative disease process in his lumbar spine, with symptoms occurring off and on “for some seven or eight years” since the incident occurring on 19 February 2008 and in the incident occurring on 23 February 2015. Dr Smith also accepted Mr Stephenson suffers an underlying degenerative disease process in his cervical spine, with symptoms occurring “for some seven or eight years” since the incident occurring on 19 February 2008 and continuing after the incident occurring on 23 February 2015.In his report dated 6 March 2017 Dr Dowda described Mr Stephenson as having worked between 2003 and 2015 and ceasing work after the incident occurring on 23 February 2015. While Dr Dowda reported Mr Stephenson had told him that “he had problems over a few years with neck pain recurring regularly” Dr Dowda described the incident occurring on
23 February 2015 as “the most significant” in his current presentation. Dr Dowda described Mr Stephenson as suffering severe pain in his low back on this occasion, with pain radiating into his left lower extremity. While Dr Dowda accepted Mr Stephenson suffered significant low back disability at the time of assessment, relevant to complaint made about
Mr Stephenson’s neck, Dr Dowda said he had not identified “clinically significant cervical spinal disability” at the time of assessment.In his report dated 10 December 2018 Dr Oates reported a consistent history of
Mr Stephenson’s work duties at Inghams being heavy and repetitive in nature. Dr Oates described the incident occurring on 19 February 2008 when Mr Stephenson sustained injury to his low back, with weakness in both legs (his left leg worse than his right) and a return to suitable duties after time off work, physiotherapy treatment and inflammatory medication, with a gradual return to his pre-injury duties. Dr Oates reported a gradual increase in
Mr Stephenson’s low back symptoms, with radiating pain into his buttocks and both lower extremities, with the further incident occurring on 23 February 2015 which resulted in him seeking medical attention and ceasing work. At the time of initial consultation, Dr Oates provided opinion that the nature and conditions of Mr Stephenson’s employment with Inghams “along with” the incidents occurring on 19 February 2008 and 23 February 2015 was the main contributing factor to the aggravating injury he had sustained to the underlying degenerative disease process Mr Stephenson suffers in his lumbar spine. In his subsequent report dated 20 July 2021 Dr Oates described the symptoms suffered by Mr Stephenson in his low back in the incident occurring on 19 February 2008 “namely low back pain and left leg symptoms” as continuing to be “similar” ongoing with acute exacerbation in the incident occurring on 23 February 2015. Dr Oates provided opinion that Mr Stephenson’s low back pathology resulting from the incident occurring on 19 February 2008 and the nature and conditions of his employment with Inghams, which included the incident occurring on
23 February 2015 is the same pathology “namely left sided L5/S1 disc protrusion with irritation progressing to frank compression of the left S1 nerve root”. In response to specific questioning as to whether he felt it appropriate to apportion impairment resulting fromMr Stephenson’s low back injury, Dr Oates did not believe so in circumstances where the initial incident occurring on 19 February 2008 initiated pathology which worsened with the nature and conditions of Mr Stephenson’s employment with Inghams, including the incident occurring on 23 February 2015. Dr Oates explained his reasoning by saying “… this is because these multiple factors involved events to the same body system, including the same pathology”, which is consistent with consideration by DP Roche, as he then was, in Department of Juvenile Justice v Edmed.[9][9] [2008] NSWWCCPD 6.
In his initial report Dr Oates also described Mr Stephenson as developing a gradual onset of symptoms in his neck from “prolonged leaning over a low set bench at work, sorting chicken meat in front of him with his arms outstretched”. Dr Oates provided diagnosis of soft tissue injury and provided opinion that the nature and conditions of Mr Stephenson’s employment with Inghams was the main contributing factor to the underlying disease process
Mr Stephenson suffered in his cervical spine.In his report dated 22 December 2020 Dr Potter reports a curious history of Mr Stephenson suffering back and left leg pain in the incident occurring on 23 February 2015 with only “one to 2 years of pains before, not seeking medical care”, which is clearly not correct in light of the incident occurring on 19 February 2008 with Mr Stephenson seeking medical attention and receiving physiotherapy treatment, and Mr Stephenson reportedly remaining symptomatic since then. While Dr Potter initially accepted as probable that Mr Stephenson’s low back injury resulted from the incident occurring on 23 February 2015, following review of the clinical records of Gosford Hospital relevant to Mr Stephenson’s presentation on
24 February 2015, which reportedly make no mention of an incident occurring at work on
23 February 2015 and made no mention of any “work-related pathology”, Dr Potter wrote in response to specific question as the cause of Mr Stephenson’s low back current presentation:“The answer therefore is that although the pathology is clear and although the patient maintains it came at the worksite, that is not supported by any other information thus far and would suggest that these factors may have come not from the workplace injury.”
Other than noting that at the time of assessment Mr Stephenson was able to identify three different areas of pain, which relevantly included his neck and his low back, Dr Potter provides no further comment about Mr Stephenson’s neck problems.
It is evident from the medical evidence before the Commission that Mr Stephenson suffers from a degenerative process in his lumbar spine and his cervical spine. There is evidence before the Commission supportive of Mr Stephenson’s allegation that he has sustained injury in the nature of an aggravation of the degenerative process in his lumbar spine resulting from the nature and conditions of his employment with Inghams, including but not limited to the specific incidents occurring on 19 February 2008 and 23 February 2015. There is evidence before the Commission supportive of Mr Stephenson’s allegation that he also sustained injury in the nature of an aggravation of the degenerative process in his cervical spine resulting from the nature and conditions of his employment with Inghams.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, I accept Mr Stephenson has sustained injury in the nature of an aggravation of a pre-existing disease he suffered in his lumbar spine and that his employment with Inghams was the main contributing factor to injury. I also accept Mr Stephenson has sustained injury in the nature of an aggravation of a pre-existing disease he suffered in his cervical spine and that his employment with Inghams was the main contributing factor to injury. As required by the matter of Nguyen I do “feel an actual persuasion of the actual existence of that fact”.
Mr Stephenson worked with Inghams for many years as a process worker and has described his work duties as heavy and repetitive in nature. I have no reason to believe
Mr Stephenson’s work duties with Inghams were other than as Mr Stephenson has described them. Mr Stephenson has provided a consistent history of experiencing symptoms in his low back in the incident occurring on 19 February 2008. Mr Stephenson has also provided a consistent history of experiencing ongoing symptoms in his low back and also his neck since that time, with an acute exacerbation of his low back symptoms in the incident on 23 February 2015 and ongoing symptoms in his low back and his neck since that time, despite his ceasing work following that latter incident.Dr Oates and Dr Potter are the independent medical examiners who have had the opportunity to assess Mr Stephenson in more recent times, and I am of the view their opinions on causation are of some significance in the context of Mr Stephenson’s claim for permanent impairment compensation resulting from the injuries Mr Stephenson has sustained to his lumbar spine and cervical spine.
I accept the opinion provided by Dr Oates that Mr Stephenson has sustained an aggravation of pre-existing injury in the nature of disease injury suffered in his low back as a result of the nature and conditions of his employment with Inghams, which includes the incidents occurring on 19 February 2008 and 23 February 2015, with Mr Stephenson’s employment with Inghams being the main contributing factor to injury. I accept the opinion provided by
Dr Oates that Mr Stephenson sustained an aggravation of pre-existing injury in the nature of disease injury suffered in his cervical spine as a result of the nature and conditions of his employment with Inghams, with Mr Stephenson’s employment with Inghams being the main contributing factor to injury. I accept the opinion provided by Dr Oates that the pathology resulting from the incident occurring on 19 February 2008 and the nature and conditions of Mr Stephenson’s employment with Inghams, which he said included the incident occurring on 23 February 2015 represents the same pathology, being “left sided L5/S1 disc protrusion with irritation progressing to frank compression of the left S1 nerve root” and accordingly
I consider it appropriate that the impairments resulting from the incident occurring on
19 February 2008 and the nature and conditions of Mr Stephenson’s employment with Inghams, including the incident occurring on 23 February 2015, be assessed together as provided by s 322(2) of the 1998 Act. I consider it appropriate that any impairment resulting from the injury Mr Stephenson sustained to his cervical spine as a result of the nature and conditions of his employment with Inghams be assessed together with any impairment Mr Stephenson has sustained to his lumbar spine as a result of the nature and conditions of his employment with Inghams (including the incidents occurring on 19 February 2008 and 23 February 2015).I prefer the opinion of Dr Oates to that provided by Dr Potter as Dr Potter’s ultimate opinion as the cause of Mr Stephenson’s low back injury appears to be premised on a note dated
27 February 2021 provided to him by Ingham’s solicitor, which is not in evidence, and review of the clinical notes of Gosford Hospital dated 24 February 2015, a complete copy of which does not appear to be in evidence. Furthermore, Dr Potter has failed to provide opinion as to the cause of Mr Stephenson’s cervical spine injury, save perhaps to note that the CT scan dated 7 August 2015, which is after Mr Stephenson ceased working with Inghams, demonstrated no neck injury but “normal-for-age findings”. Of note too is that Dr Potter provides no opinion as to apportionment.I draw comfort in my conclusion by the history provided by Dr Mendelsohn in his report dated 14 December 2015 that Mr Stephenson suffered symptoms in his low back and neck following the incident occurring on 19 February 2008, for which he reportedly took time off work, with Mr Stephenson ultimately ceasing work after the incident occurring on 21 February 2015.
I also draw comfort in my conclusion by opinion provide by Dr Smith who accepts in his report dated 22 November 2016 that Mr Stephenson would have been suffering symptoms “off and on” in his low back and neck since the incident occurring on 19 February 2008 and provided opinion Mr Stephenson suffered aggravations of the symptomatic degenerative disease in his lumbar spine and cervical spine since the incident occurring on 19 February 2008, including aggravation occurring in the incident occurring on 23 February 2015.
Permanent impairment
I have determined Mr Stephenson sustained injury to his cervical spine and lumbar spine in the course of his employment with Inghams (including but not limited to injurious episodes affecting his lumbar spine on 19 February 2008 and 23 February 2015) and that
Mr Stephenson’s employment was the main contributing factor to injury. The deemed date of injury is 23 February 2015.It is appropriate that Mr Stephenson’s claim for permanent impairment resulting from injury sustained to his cervical spine and lumbar spine be referred to a Medical Assessor for assessment of permanent impairment resulting from those injuries with a deemed date of injury of 23 February 2015.
The documents to be referred to the Medical Assessor together with this Certificate of Determination and Statement of Reasons are as follows:
(a)Application to Resolve a Dispute and attached documents;
(b)Reply and attached documents, and
(c)Application to Admit Late Documents dated 14 October 2022 and attached documents.
SUMMARY
I have determined Mr Stephenson sustained injury to his lumbar spine in the course of his employment with Inghams (including but not limited to injurious episodes affecting his lumbar spine on 19 February 2008 and 23 February 2015) and that Mr Stephenson’s employment was the main contributing factor to injury. The deemed date of injury is 23 February 2015.
I have determined Mr Stephenson sustained injury to his cervical spine in the course of his employment with Inghams and that Mr Stephenson’s employment was the main contributing factor to injury. The deemed date of injury is 23 February 2015.
It is appropriate that Mr Stephenson’s claim for permanent impairment resulting from injury sustained to his cervical spine and lumbar spine, be referred to a Medical Assessor for assessment of permanent impairment resulting from those injuries with a deemed date of injury of 23 February 2015. The documents to be referred to the Medical Assessor together with this Certificate of Determination and Statement of Reasons are as follows:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 14 October 2022 and attached documents.
0
8
8