Storum v Kenneth Craig Allen
[2021] NSWPIC 253
•19 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Storum v Kenneth Craig Allen [2021] NSWPIC 253 |
| APPLICANT: | Keith Storum |
| RESPONDENT: | Kenneth Craig Allen |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 19 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for declaration pursuant to section 60(5) of the 1987 act for urological surgery; causation issue; Applicant’s treating urological surgeon regards bladder issues to be recurrence of earlier pathology caused by nerve damage in motor vehicle accident; contrary urological opinion; Held- treating surgeon’s opinion preferred for reasons including access to cystoscopy report. |
| DETERMINATIONS MADE: | 1. Pursuant to section 60(5) of the Workers Compensation Act 1987 the respondent is directed to pay the costs of and incidental to urological surgery recommended by Dr Paul Cozzi. |
STATEMENT OF REASONS
BACKGROUND
Keith Storum (the applicant) is an 81 year old man who was employed by Kenneth Craig Allen (the respondent). His current claim is pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) being the costs of surgery, namely an endoscopic prostatectomy.
The surgery has been recommended by Dr P Cozzi, the applicant’s urological surgeon. The insurer has decided to dispute liability for the surgery based upon a report of Dr P Bergersen.
The applicant sustained serious injuries in a motor vehicle accident on 20 July 2007. He has previously been assessed as having suffered a 41% whole person impairment.
ISSUES FOR DETERMINATION
The issue for determination is whether there is a sufficient causal connection between the applicant’s injuries which occurred in 2007 and the current surgery proposed by Dr Cozzi.
PROCEDURE BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing in the Commission by telephone on 22 June 2021. Mr P Stockley of counsel instructed by Mr S Groves solicitor appeared for and with the applicant. Ms L Goodman of counsel instructed by Ms E Scott solicitor appeared for the respondent.
Discussions were held with a view to conciliating the matter but despite this conciliation process the matter was not capable of resolution. I am satisfied that I used my best endeavours to attempt settlement, to no avail. That being the case, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
DOCUMENTS BEFORE THE COMMISSION
Documentary evidence consisted of:
(a) Application to Resolve a Dispute and attachment filed 27 April 2021 (Application), and
(b) Reply and attachments filed 17 May 2021 (Reply).
No oral evidence was given.
SUBMISSIONS
Both counsel made oral submissions. These submissions were sound recorded and I do not propose to set them out in detail but will endeavour to address them in the Reasons which follow.
DISCUSSION AND REASONS
The applicant notes his multiple injuries but identifies his “main current problem… (as) severe pain in my neck and upper thoracic spine and I suffer very severe problems with my balance”.[1]
[1] Applicant’s statement 12 July 2018 at [5], Application page 2
In his July 2018 statement the applicant does not make specific mention of urological problems, however, the existence of ongoing problems with the applicant’s bladder and urinary tract is said by the applicant in his second statement[2] as having existed since the accident in 2007. This is supported by the fact that in 2011 Dr Cozzi performed a TURP operation and several reports of Dr Cozzi in 2011.
[2] Applicant’s statement 20 January 2021 at [19]-[20]
Dr Cozzi reported on 4 February 2011 that the applicant’s urological symptoms date from the motor accident. He said on 4 March 2011 that he proposed the TURP operation to occur on 17 March 2011. Dr Cozzi in that report commented that the applicant’s neuropathic bladder was worse “due to nerve injuries sustained at the time of his car accident”.[3]
[3] Application at page 39
In a further report dated 11 November 2011 Dr Cozzi refers to an urodynamics study “which clearly reveals evidence of a neuropathic bladder from nerve injury at the time of his motor vehicle accident…”. He also notes that from that time he has also experienced bowel dysfunction and expresses the opinion that “…it is likely that his bladder and bowel have been affected by the incident”.[4]
[4] Ibid at page 40
On 18 July 2019 the applicant’s general practitioner referred the applicant to Dr P Bergerson who expressed the opinion that the applicant’s neurological symptoms arose following lumbar surgery in 2018 which surgery was not connected to the motor vehicle accident. Dr Bergerson’s opinion is the only opinion contrary to that of Dr Cozzi.
Dr Bergerson saw the applicant on one occasion only and had been given a history in the referral of Dr Selwyn GP that the applicant had experienced incomplete bladder emptying since 2007.It is clear that Dr Bergerson was given a history of the applicant having experienced “urinary issues for many years” and had undergone the TURP surgery in 2011.[5] Dr Bergerson’s only report is 23 August 2019 and does not have the benefit of cystoscopy which according to
Dr Cozzi in his report of 6 February 2020[6] “reveals regrowth of the adenoma in the apex of the prostate”. The pathology appears to be the same as in 2011. This led Dr Cozzi to conclude that the applicant’s “neuropathic bladder following the car accident contributed to his voiding dysfunction”.[7][5] Reply at page 4
[6] Application at page 41
[7] Ibid
The respondent points to the absence of complaints of bladder problems or back problems from the motor vehicle accident in 2007 until the back surgery in 2018. It is suggested that
Dr Selwyn’s reference in his 18 July 2019 referral to incomplete bladder emptying from 2007 could be any date in 2007, not necessarily from the motor vehicle accident. The respondent also points to the report of Dr Fung, neurologist, of 22 January 2019 and the history that two weeks after the lumbar spine operation on 21 November 2018 the applicant developed bladder and leg disturbance.[8][8] Application at pages 36-37
I prefer the medical opinion of Dr Cozzi for the following reasons:
(a) Dr Cozzi has seen the applicant on several occasions since 2011 as a treating surgeon whereas Dr Bergerson saw the applicant on one occasion only.
(b) Dr Bergerson does not deal with the history of the applicant’s TURP procedure in 2011 except to note that it occurred. Notwithstanding the existence of this procedure and the history given to him that the applicant’s problems commenced in 2007, Dr Bergerson dismisses these earlier bladder problems and attributes, without any extensive reasoning, the applicant’s problems as being a consequence of the 2018 lumbar spine operation.
(c) Dr Bergerson does not have the benefit of the cystosopy results referred to in
Dr Cozzi’s report of 6 February 2020 which according to Dr Cozzi reveals regrowth in circumstances where the prior surgery in 2011 was successful in re-establishing voiding.There does not appear to be any significant dispute concerning whether the proposed surgery is reasonably necessary (as distinct from reasonably necessary as a result of injury). Having come to the above view, the appropriate order is as follows:
(a) Pursuant to section 60(5) of the 1987 Act the respondent is directed to pay the costs of and incidental to urological surgery recommended by Dr Paul Cozzi.
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