Stocker v Jones Lang Lasalle (NSW) Pty Ltd
[2022] NSWPIC 251
•26 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Stocker v Jones Lang Lasalle (NSW) Pty Ltd [2022] NSWPIC 251 |
| APPLICANT: | Anthony Stocker |
| RESPONDENT: | Jones Lang Lasalle (NSW) Pty Ltd |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 26 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of lumbar surgery for injuries received in a motor vehicle collision in 1992; proposed surgery not challenged as not being reasonably necessary; whether applicant satisfied onus of proof regarding causation; Held- opinions as to causation by medico-legal expert and treating surgeon ipse dixit; no contemporaneous support; respondent experts that the surgery was not connected with the injury accepted: award respondent. |
| DETERMINATIONS MADE: | 1. The proposed surgery is reasonably necessary. 2. However, the need for the proposed surgery is not caused by the pleaded injury. |
| ORDERS MADE: | 1. There is an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Anthony Stocker, the applicant, brings an action against Jones Lang Lasalle (NSW) Pty Ltd, the respondent, for weekly payments and for the cost of proposed surgery arising out of a motor vehicle accident which occurred on 3 November 1992.
Dispute notices were issued and the matter duly came before the Personal Injury Commission (the Commission) after the Application to Resolve a Dispute (ARD) and reply had been lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Is the proposed surgery reasonably necessary.
(b) Is the proposed surgery related to the subject injury?
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation and arbitration hearing on 3 May 2022. The applicant was represented by Mr Bill Carney of counsel instructed by Rohini Ratnasingam of Messrs PK Simpson & Co. The respondent was represented by Mr Ross Hanrahan of counsel instructed by Alice Davis of Gair Legal. Ms Wendy Chambers appeared on behalf of the insurer.
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, and
(b) Reply and attached documents.
Oral evidence
No application was made for oral evidence.
FINDINGS AND REASONS
At the outset of the hearing Mr Carney discontinued the application for weekly payments.
Mr Stocker brought an action in relation to his injuries which were the subject of a Consent Order in the Parramatta Compensation Court on 12 July 1996 which provided for lump sum compensation in respect of:
· the right arm at or above the elbow;
· the right leg at or above the knee;
· the back, and
· the neck[1].
[1] ARD p 116.
Mr Stocker’s statement
Mr Stocker made a statement dated 17 December 2021. He stated that he came to Australia in 1982 and is now an Australian citizen.
He said he commenced employment on 1 July 1988 with Jones Lang Wotton as a Facilities Manager earning about $1,800 pw. He stated that the work involved frequent and strenuous use of his body including the use of his neck, right arm, right shoulder, back and right leg.
He said the work was stressful.
Be that as it may, on or about 17 November 1992 he described a motor vehicle accident where he was the driver and was struck by another vehicle whilst in the course of his employment. He made a workers compensation claim and returned to work on light duties “after a couple of weeks off” where he worked for a month or two before he returned to his pre-injury duties.
Mr Stocker continued working for the respondent for another four years and said however that he chose to leave “because of the pain that I was experiencing”.[2]
[2] ARD p 2 [16].
He said he then opened a company called “BSC Enterprises”. He said he hired people to work for him “so that I did not have to work due to my injuries.” He said that he could not do any further work in the company by himself and lost all of his clientele with a result that he had to wind up his company.
This occurred, he said, in around 2018. He said that he tried to do some casual work without much success and that he had a wealthy friend who was able to help him out financially by lending him money.
Mr Stocker then described the present state of his back condition, describing pain in his back and into his legs. He also described neck pain, which produced headaches and restricted his movement. He said he had pains that travelled from his neck into his right and left hands and that he got pins and needles and tingling in his right hand. Mr Stocker’s right shoulder and left shoulder caused him pain, he said. He was unable to lift his shoulders up or carry many things.
He said that physiotherapy had not assisted him and that he was referred to Dr Singh who trialled cortisone injections but they did not assist either.
Mr Stocker said that he had been informed by Dr Singh that he needed surgery, which Mr Stocker indicated that he wished to go ahead with as he was in too much pain every day and this was impacting his life significantly. He also said that he wished to go back to work which he thought the surgery would enable.
Associate Professor Hope
Associate Professor (Dr) Nigel Hope was retained as the applicant’s medico-legal expert. Dr Hope reported on 18 October 2020. He took a history that Mr Stocker had not had any pre-existing pathology in his lumbar spine but that the lumbar spine was “permanently injured in a work related motor vehicle accident on 17 November 1992.”[3]
[3] ARD p 4.
At the same point in his report Dr Hope said:
“Today, 29 years after the injury, there is lumbar pain, right sciatica, stiffness and right footdrop causing severe functional loss.”
Dr Hope on examination found evidence of compression to the right L4 nerve root and stated that a CT scan confirmed the L4/5 spondylosis.
Dr Hope said:
“This was caused by the work related motor vehicle accident in 1992.”
Dr Hope reported that work ceased in February 2021, and that a right foot drop began in August 2021.
He noted Mr Stocker’s current complaints to the lumbar spine and Mr Stocker’s medical history which involved:
· diabetes requiring insulin, and
· a kidney transplant in 2014.
Dr Hope examined the applicant and saw the CT scan he had earlier mentioned which was dated 23 January 2018. There was no other radiological report before him.
He described Mr Stocker’s attitude as “good” and that it contributed to his recovery. He said there was no evidence of exaggeration or fabrication and that the pathology had an organic basis.
Dr Hope diagnosed L4/5 spondylosis with right L4 radiculopathy.
He explained the diagnosis as follows:[4]
“The diagnosis is reached based on the history of a motor vehicle accident, the symptoms of lumbar pain and right sciatica, the signs of tenderness, asymmetric stiffness and right L4 radiculopathy, and the investigation showing the L4/5 pathology.”
[4] ARD p 9.
As to causation Dr Hope said:[5]
“Employment is the cause of the condition. The lumbar spine was previously symptom-free and a well described, work-related motor vehicle accident on 17 November 1992 caused permanent lumbar symptoms.”
[5] ARD p 10.
Dr Hope supported the proposed surgery.
Dr Bisham Singh
Dr Singh reported to the applicant’s solicitors on 22 October 2021.[6] The history taken was that the applicant had back and leg pain from lumbar canal stenosis. Dr Singh said:
“This is likely related to an evolving injury sustained during a motor vehicle accident in 1992…”
[6] ARD p 12.
Dr Singh diagnosed a lumbar disc injury with worsening stenosis at L4/5. There was structural pathology from L4 to S1. The purpose of the surgery was to decompress the neurological elements to improve the leg pain, and stabilise the motion segments from L4 to S1, to improve the axial lower back pain.
Dr Singh noted that Mr Stocker was asymptomatic prior to his motor vehicle accident. Dr Singh said “therefore work is the main contributing factor to his back injury.”
On 7 July 2020 Dr Singh reported to the general practitioner (GP) Dr Lim. He said:[7]
“… His diagnosis is lumbar canal stenosis at L4/5 on a background of degenerative spondylolisthesis. There is disc degeneration L4 to S1.”
[7] ARD p 19.
As to causation, Dr Singh said:
“Given the nature of his injury, and ongoing progression, I believe that his condition is likely secondary to the injury sustained in the workplace. I believe that his employment has been the main contributing factor to his current pathology.”
In a note of the same date, Dr Singh described Mr Stocker’s past medical history, noting that he suffered from high blood pressure, arthritis, phlebitis/blood clots, kidney infections, heart attack and diabetes.[8] He noted CT scans from January 2018 and March 2020. He recommended surgery to decompress a “serious stenosis” revealed in the scans.
[8] ARD p 20.
On 15 December 2020 Dr Singh reported again to Dr Lim on the results of an MRI scan from Westmead Hospital. This reported lumbar canal stenosis and anterolisthesis at L4/5 with a loss of disc height at L5/S1.[9]
[9] ARD p 18.
Clinical notes
The applicant relied on an entry in his then GP’s handwritten clinical notes dated 8 December 1995, which read:[10]
“Pain r shoulder intermittently x 2 yrs. Had MVA 2 yrs ago…”
[10] Reply p 96.
There were further entries regarding the shoulder and back through to February 1996.
Dr Vijay Panjratan, orthopaedic surgeon
Dr Panjratan wrote three reports to the respondent’s solicitors.[11] The first was dated 7 May 2019 in which he took a history that the applicant worked as a Project Manager for three to four years after finishing with the respondent, and then looked after the Shangri-La Hotel in Fiji until he finished 2 ½ years before. He had not worked since.
[11] 7 May 2019 at Reply p 39: 15 April 2020 at Reply p 47: 12 June 2020 at Reply p 59.
The history he took was of a head-on collision on 15 March 1995 with a security guard who had fallen asleep at the wheel. Dr Panjratan took a history that Mr Stocker left the respondent within about three months of the accident. (In that regard I note the applicant said that he left after four years in his statement, which I presume is more accurate.)
Dr Panjratan saw a report of investigations within another medical report from Dr Brian Stephenson, which was not lodged. Dr Panjratan said that the significant finding was of a degenerative L4 anterolisthesis with an L4/5 spinal canal stenosis, advanced L4/5 facet joint osteoarthritis and a right intra-forminal disc protrusion at L4/5 encroaching on the exiting L4 nerve.
Dr Panjratan noted that the applicant blamed all his problems on the “1995” [sic] motor vehicle accident. However Dr Panjratan said:[12]
“The accident according to you occurred in 1992 making it 26 years ago. Over the years he has had medical problems, kidney problems and poor blood sugar control with subsequent problems.
…. These are degenerative changes unrelated to the motor vehicle accident which happened many years ago for which no specific treatment was needed.”
[12] Reply p 45.
In his report of 15 April 2020, Dr Panjratan repeated that opinion, saying that the lumbar spine imaging showed severe degenerative changes unrelated to the accident. He said:[13]
“The present condition cannot be explained on the basis of a motor vehicle accident not severe enough to be taken to hospital and continuing to work for a while after a short period of recovery.
He has renal problems, he is a diabetic and there are degenerative changes in the lumbar spine, the only imaging available with the imaging only in 2018 for an accident in 1995. [sic]”
[13] Reply p 58.
In his third report of 12 June 2020 Dr Panjratan said:[14]
“I am of the view that he does not qualify for any impairment of the cervical spine and the current changes are due to physiological changes over the years and cannot relate to the neck if he was only awarded 5% permanent impairment in 1995.
Regarding the lumbar spine he was again awarded only 10% impairment which again indicates that it was nothing significant and his present condition cannot be related to the MVA in 1992.
The lumbar CT on 13/03/2020 shows severe canal stenosis and lateral recess effacement. There may be impingement of the descending L5 nerve roots. Severe right and moderate left foraminal narrowing may be impinging the exit right L4 nerve root.
This condition has subsequently developed and is in no way related to the MVA in 1992
I am unable to relate his current neck and back condition in 1992 in which he was not hospitalised and continued working irrespective of the reasons concerned, financial or otherwise.”
[14] Reply p 60.
Dr David Gorman, consultant physician
Dr Gorman reported to the respondent’s solicitors on 2 October 2020. He took a consistent history of the motor vehicle accident and Mr Stocker’s subsequent life. He concurred with Dr Panjratan’s opinion that the motor vehicle accident could not explain Mr Stocker’s present condition. He said:[15]
“His physical condition is not related to employment. It is related to the natural ‘constitutional’ musculoskeletal degeneration as well as the effects of severe medical illnesses and their treatment.”
[15] Reply p 37.
Dr Gorman referred also to Dr Stephenson’s unlodged report, which seemed to implicate the work Mr Stocker did as a Building Services Manager as being the cause of his back condition. Dr Gorman noted at Reply p 35 that there was no heavy work done by Mr Stocker as manager, as he had delegated the heavy work to others. Dr Stephenson’s report was dated 11 February 2019, Dr Gorman said.
Be that as it may, Dr Gorman said: [16]
“Dr Stephenson did not take into account the age related degeneration which would have occurred over 28 years, did not consider the fact that Mr Stocker complained of pain in both shoulders as per his Statement, did not note the normal ultrasound of the right shoulder in 1995 and ignored the general deconditioning and musculoskeletal effects of steroid use and diabetes mellitus caused by the renal transplant and its treatment.
…….. I believe that the subsequent progression of degenerative disease and the effects of the renal transplantation instead explain any progression in impairment of the neck, back or right upper limb.”
[16] Reply p 35.
Submissions
Mr Carney stressed the problems that Mr Stocker described emanating from his back condition. There is no doubt that the applicant now suffers pathology and that it is so advanced it is causing him foot drop in his right foot.
Mr Carney submitted that the other medical problems Mr Stocker has experienced over the years are not relevant to the back condition. Mr Carney noted that Mr Stocker had had a kidney transplant and also suffered from diabetes. I note that Mr Stocker said himself during argument that he thought that his problems with the kidney transplant and the diabetes were unrelated to his back problem. He said that whilst he did suffer some back issues as a result of those later problems, they were dissimilar to the back problems under discussion.
Mr Carney referred to the opinions of Dr Singh and Dr Hope to establish the causative link between Mr Stocker’s present condition and the motor vehicle accident in 1992 . He referred to the virtual unanimity amongst the medical practitioners that by 2018 Mr Stocker had a significant problem with his back . I would accept, Mr Carney argued, the opinions of Dr Hope and Dr Singh that Mr Stocker’s present condition results from the motor vehicle accident.
Mr Hanrahan relied on the opinion of Dr Gorman saying that Dr Gorman’s opinion was that so much time had passed that it was impossible to relate any of the current pathology to Mr Stocker’s motor vehicle accident over thirty years ago.
Mr Hanrahan submitted that there was no evidence about the original motor vehicle injury to enable an understanding of the forces involved. The only reference to the motor vehicle accident over the following decades was that of December 1995 and January 1996. Twenty-five years went past, Mr Hanrahan said, before Mr Stocker came under the care of Dr Lim.
Mr Hanrahan submitted that there was no probative value in the reports that sought to ascribe liability to the respondent, as the opinions expressed therein were no more than ipse dixits.
Mr Carney responded that his client received the necessary causative support from the nature of the diagnosis.
DISCUSSION
The expert medical opinion is agreed that Mr Stoker’s present condition is serious, and there was no dissension to the proposition that surgery is necessary. However, that situation did not become apparent until 2018, since which time Mr Stocker’s condition has deteriorated, as evidenced by the development of his right foot drop in August 2021.
It is clear that Mr Stocker now believes that collision to be the cause, and his medical experts have done their best to support him. Mr Carney has also said all that can be put in support of Mr Stocker’s case, but I am not persuaded that Mr Stocker has satisfied his onus of proof.
An applicant is required to establish on the balance of probabilities that his injury has been caused in the circumstances alleged. The fact that a medico-legal expert considers that the present condition was caused by something that happened 30 years ago requires considerable attention to detail and explanation thereof regarding those intervening years.
Dr Hope did not take any history of Mr Stocker’s actual work or medical condition over the 30 years since this accident occurred. I accordingly find his opinion as to causation to be an ipse dixit. It was restricted to his observation that there had been a motor accident in 1992 and that, at the time, the lumbar spine had been symptom free, whilst it had been permanently symptomatic since that time. There is no independent contemporaneous support for that latter conclusion. Dr Hope’s opinion is devoid of the facts and circumstances one would expect to be considered in the long history of Mr Stocker’s existence over those 30 years.
Similarly, the opinion of Dr Singh suffers from the same shortcomings. He appeared to be primarily concerned with the concept of whether employment was the main or a substantial contributing factor to the injury, and I found his reference to Mr Stocker’s condition being “secondary” to the injury sustained “in the workplace” quite puzzling. The injury in fact occurred in a motor vehicle collision and I was unsure as to what Dr Singh meant by the word “secondary.”
I prefer the opinion of Dr Panjratan, who noted the subsequent medical problems that Mr Stocker had to cope with, including a kidney transplant, his diabetes condition and a significant degenerative condition in the form of an anterolisthesis and an associated foot drop as a result of the neurological implications. I agree that Mr Stocker’s present condition cannot be explained by the motor vehicle accident, which was not severe enough for Mr Stocker to be taken to hospital and in the light of his unremarkable subsequent work history. It is also significant that the imaging taken of the lumbar spine did not occur until 2018. I note that there is contemporaneous support for a shoulder problem as a result of the motor vehicle accident at the end of 1995, but there is no record of it continuing after the treatment he received around that time.
I note with interest Dr Gorman’s reference to a report by Dr Brian Stephenson of 11 February 2019, in that it appeared to be concerned with an allegation that the nature of Mr Stocker’s employment at some stage was the cause of his condition. In any event I accept Dr Gorman’s opinion that Mr Stocker’s physical condition is not related to his employment, but derives from constitutional musculoskeletal degeneration and the severe medical illnesses Mr Stocker has subsequently acquired and had treated.
Whilst there is no doubt that Mr Stocker’s surgery is reasonably necessary, its need does not arise from the pleaded injury.
SUMMARY
There is an award for the respondent.
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