Tata v Dyldam Developments Pty Ltd
[2021] NSWPIC 251
•16 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Tata v Dyldam Developments Pty Ltd [2021] NSWPIC 251 |
| APPLICANT: | Malcolm Luke Homai Tata |
| RESPONDENT: | Dyldam Developments Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 16 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly payments of compensation and order for payment of surgery to lumbar spine; respondent admits penetration injury to left thigh but disputes injury to lumbar spine, left hip and left knee; North Coast Area Health Service v Felstead considered; Held – worker sustained injury to his lumbar spine, left hip and left knee in the course of his employment on 1 August 2016; the worker has had no current work capacity since 6 November 2019; proposed surgery results from injury and is reasonably necessary, with order pursuant to section 60(5) of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to his lumbar spine, left hip and left knee in the course of his employment with the respondent on 1 August 2016. 2. The applicant has had no current work capacity since 6 November 2019. 3. The L5/S1 discectomy proposed by A/Prof Papantoniou is reasonably necessary as a result of the injury sustained by the applicant on 1 August 2016. |
| ORDERS MADE: | 1. The respondent is to pay the applicant weekly payments of compensation at the rate of $765.32 per week from 6 November 2019 to date and continuing pursuant to section 37 (3) of the Workers Compensation Act 1987. 2. Pursuant to section 60 (5) and section 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the L5/S1 discectomy proposed by A/Prof Papantoniou, and expenses reasonably incidental to that surgery. 3. The respondent is to pay the reasonably necessary medical expenses incurred by the applicant for treatment of the wound to his left thigh and injury to the lumbar spine, left hip and left knee. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Malcolm Luke Homai Tata, sustained a penetration wound to his left thigh on 1 August 2016 while employed as a dogman for the respondent, Dyldam Developments Pty Ltd, when he fell onto an exposed steel reinforcing bar at a construction site at Merrylands.
The applicant was taken by ambulance to Westmead Hospital and had the wound sutured.
The applicant was unfit for work for about four months following the injury and was paid workers compensation benefits.
The applicant continued to work for the respondent throughout 2017 and then resigned. The applicant worked for six to nine months with Urban Apartments in 2018 and in the early part of 2019. He claims that he was doing lighter labouring work. The applicant has not worked since 1 April 2019.
The applicant claims that he also sustained an injury to his lumbar spine, left hip and left knee in the incident on 1 August 2016.
The applicant claims as a result of the injury to his left thigh, lumbar spine, left hip and left knee, he has had no current work capacity since 1 April 2019.
The applicant also seeks an order pursuant to section 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pays the costs of a L5/S1 discectomy recommended by A/Prof Papantoniou.
The respondent disputes that the applicant sustained an injury to his lumbar spine, left hip and left knee on 1 August 2016.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his lumbar spine, left hip and/or left knee in the course of his employment with the respondent on 1 August 2016 (section 4 of the 1987 Act);
(b) whether the applicant has had no current work capacity since 1 April 2019 as a result of any injury he sustained to his left thigh, lumbar spine, left hip and/or left knee (sections 32A, 33, 36 and 37 of the 1987 Act);
(c) whether the need for surgery to the applicant’s lumbar spine results from the injury sustained on 1 August 2016 (section 60 of the 1987 Act);
(d) whether the respondent is liable for reasonably necessary medical treatment for any injury to the lumbar spine, left hip and/or left knee (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 8 July 2021. 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.
Mr Morgan appeared for the applicant, instructed by Mr Attique. Mr Barnes appeared for the respondent, instructed by Mr Reiner.
The hearing was conducted by telephone in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $956.65.
Mr Barnes was instructed that the applicant has received more than 13 weeks of weekly payments of compensation.
In the Application to Resolve a Dispute (the ARD) the claim for weekly payments of compensation commences on 11 April 2018. However, at the hearing that claim was amended to commence as of 1 April 2019, as a PAYG Summary for the applicant that was provided by PME Labour Hire Management Pty Ltd ended on 31 March 2019.
Reports from two independent medical experts retained by the respondent (being Dr Powell and A/Prof Miniter) were included in the Reply. During the course of the hearing, Mr Barnes sought to elect to have only the report from A/Prof Miniter admitted into evidence as provided for by Regulation 44 of the Workers Compensation Regulation 2016.
Mr Morgan was able to refer to correspondence between the parties which stated that the report from A/Prof Miniter was to be obtained to address the claim for the proposed surgery to the applicant’s lower back, and that Dr Powell was not likely to provide a prompt response to this issue. In those circumstances, and particularly in consideration of what is allowed by sub-clause (4) of Regulation 44, the reports of both Dr Powell and A/Prof Miniter were admitted into evidence.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents filed by the applicant on 2 July 2021.
Oral Evidence
There was no application to adduce oral evidence or to cross examine the applicant.
The applicant’s evidence
The applicant has provided statements dated 22 April 2020, 11 January 2021 and
14 February 2021.The applicant states that he fell about three metres through a void on a worksite and landed on a blunted end of a steel reinforcing bar, which penetrated his left upper leg. He states that he was brought to a sudden stop by colliding with the reinforcing bar and was suspended for some time until a crane operator assisted the applicant off the bar.
The applicant states that he was off work for about three months and had some complications with the wound to his left leg, including an infection. He states that he attended a physiotherapist, Mr Tsui, at the same practice as his general practitioner in Doonside. He states that physiotherapy treatment included heat packs applied to the applicant’s hip, back and leg.
The applicant states that he wanted to get back to work as soon as possible because he is not Australian citizen and could not rely on Centrelink. He states that he undertook the full duties of a dogman although he had continuing problems with his lower left back, left hip and left thigh.
The applicant states that he resigned from his position with the respondent on or about
9 March 2018. He states that there was “aggravation” from his boss, but the primary reason for leaving the job was “the ongoing pain that I was suffering as a result of the subject incident.”The applicant states that he had not been happy with the treatment he was getting at the medical practice at Doonside, and decided to attend Dr Moussad, who was also in Doonside. The applicant states that he told Dr Moussad that since the fall in 2016 he had been having problems around his left hip, down the left leg, and in the lower back. He was referred for a CT scan of the lower back in January 2018.
The applicant states that he commenced work with Urban Apartments in mid-2018. He states that he was not doing dogman work, but lighter work on a building site, which he was hoping he could cope with. He states that he developed quite serious pain in his lower back, even though he was doing lighter work, and ultimately ceased work because of this pain.
The applicant states that he stopped work with Urban Apartments in January 2019, although he has not been able to provide a precise date, and a PAYG Summary provided by PME Labour Hire Management Pty Ltd records a period of payment from 1 July 2018 to 31 March 2019.
The applicant states that he has no specific recollection of intense back pain on the day of the incident and that over the next three to six months he was dealing with significant pain associated with the wound on his left leg. He states that he had persisting pain in his left leg after his wound had cleared up. He states that it became apparent over the course of 12 months that his back “was playing up.”
The applicant states that there was an incident on 23 September 2017 when he slipped at work and grazed the inside of his thigh and groin. He states that he only had one day off work due to this incident.
The medical evidence
The ambulance report records that the applicant states that he fell about one metre, and complaints of injury are limited to the left thigh and inside of the right buttock.
The discharge summary from Westmead Hospital records that the applicant fell a
half to one metre, and that the applicant denied any injuries other than to his left hamstring.
The clinical notes from Rainbow Medical Centre, Doonside, are in evidence, where the applicant was treated by Dr Vakeeswaran and had physiotherapy treatment from Ming Tsui.
There were some 30 attendances recorded by Dr Vakeeswaran for treatment of the applicant between 1 August 2016 and 5 January 2017, and the notes made by Dr Vakeeswaran are almost all in relation to treatment of the left thigh wound.
There were some 20 attendances recorded by Mr Tsui between 2 September 2016 and
19 December 2016. The notes from Mr Tsui refer on multiple occasions to pain in the left hip as well as the left thigh. There are also records made of pain and restriction of movement in the left knee.
I could not locate any reference to lower back problems in the notes from Dr Vakeeswaran and Mr Tsui, except for a reference by Mr Tsui of “feel stiffness on back and hip” on
7 November 2016.The applicant attended a general surgeon, Dr Loh, on two occasions in September and October 2016 to review the condition of the wound on the left thigh.
On 5 January 2017, Dr Vakeeswaran records: “THIGH INJURY RESOLVED. PRE INJURY DUTIES”, and issues a Certificate of Capacity which certifies that the applicant is fit for pre-injury duties.
There are records from Actevate in the Reply which indicate that the applicant had returned to suitable duties by early October 2016. An email from Rachel Lewis from Actevate on
26 October 2016 states:“Malcolm reported that he was “going good” and that he did have occasional pain symptoms, but not often and his symptoms could be alleviated by physiotherapy treatment.”
An email from Caitlin Stanistreet from Actevate on 6 January 2017 records that the applicant “reported that he had felt fine being on pre-injury duties.”
There are no references to lower back pain in the clinical notes made by Dr Vakeeswaran until 14 December 2017 when it is recorded: “back pain, left leg pain. Does repetitive bending and lifting at work.”
Dr Vakeeswaran records on 26 September 2017 that the applicant bruised both inner thighs in a fall. The notes indicate that the applicant attended Dr Vakeeswaran three days later in regard to the same incident, but there are then no further entries in regard to that incident.
Dr Vakeeswaran records on 24 January 2018: “LEFT KNEE PAIN. NO INJURIES. WAKE UP WITH KNEE PAIN.”
The first record made by Dr Moussad in regard to the applicant is on 17 January 2018.
Dr Moussad records the work injury of 1 August 2016, and his notes include:“pain of the left thigh
Bilateral knees pain
Left more than right
LBP”
At a consultation two days later, Dr Moussad adds left hip pain to the applicant’s complaints.
A CT scan dated 24 January 2018 reports: “L5/S1 small left central disc protrusion which could potentially be affecting the left descending S1 nerve root in the lateral recess.”
A MRI scan dated 22 May 2018 reports: “Acute annular tear is confirmed at L5/S1, associated with minor posterior disc protrusion.”
Dr Moussad provided a referral on 6 April 2018 for the applicant to see A/Prof Papantoniou, but the applicant did not attend A/Prof Papantoniou until October 2018. In his initial report dated 24 October 2018, A/Prof Papantoniou records the penetrating injury which the applicant sustained to his left thigh on 1 August 2016, when the applicant fell approximately three metres. He records that as the applicant “was recovering, lower back pain and left knee pain became evident.”
A/Prof Papantoniou opines in that report:
“The severity of this injury and the pain clearly masked the pain from his lower back and his left knee in the short term. As the pain from his left thigh ceased the other pathology became evident.
Mr Tata has suffered L4/5 disc pathology and left knee pathology as a direct result of his work injury.”
In a report dated 6 November 2019, A/Prof Papantoniou recommended a L4/5 nucleoplasty after two steroid injections provided no help for the applicant. However, almost a year later in August 2020, A/Prof Papantoniou writes that a recent MRI scan had demonstrated a very large left sided and central L5/S1 disc prolapse, so that the applicant was no longer suited for nucleoplasty but should proceed with urgency to a L5/S1 discectomy.
A/Prof Papantoniou has also provided a report to the applicant’s solicitors dated 12 July 2020. A/Prof Papantoniou writes that a CT scan and MRI scan demonstrated L4/5 disc pathology consistent with pain and opines:
“I am of the opinion that Mr Tata has suffered his pathology as a result of the work injury as there is no indication there was any pre-existing pathology. The mechanism of injury and the intensity of the trauma are consistent with having caused these pathologies.”
Dr Gehr, orthopaedic surgeon, has provided reports at the request of the applicant’s solicitors dated 21 October 2019, 24 April 2020 and 23 March 2021.
In his report dated 21 October 2019, Dr Gehr records that on 1 August 2016 the applicant fell approximately 3.5 metres onto his left leg. Dr Gehr does not record the applicant having any symptoms in the lower back, left knee or left hip immediately following the incident, but that the applicant’s current symptoms include pain over the lumbar spine, pain down the left leg and occasional knee pain.
Dr Gehr diagnoses the applicant as having had a penetrating injury to the left hamstrings with resultant decreased range of motion of the left hip, left knee and left thigh muscle wasting; a lumbar spine soft tissue injury; and left gluteal muscle wasting.
In a supplementary report dated 23 March 2021, Dr Gehr opines:
“With the nature of the injury that he suffered with a penetrating injury to the left buttocks, I am not surprised that he also sustained an associated lumbar spine injury. This is a combination of either a direct injury at the time of the subject accident or developing over the ensuing months - a problem developing with his lumbar spine from awkward and difficult gait associated with persisting pain over the left hip and thigh.”
Dr Gehr also writes that he agrees with the opinion of A/Prof Papantoniou that the severity of the applicant’s injury and pain in the left leg clearly masked pain in the lower back and left knee in the short term.
Dr Powell, orthopaedic surgeon, provided a report at the request of the respondent dated
14 June 2018.Dr Powell records that the applicant fell three metres onto a set of vertically protruding steel bars and that one of the bars penetrated the applicant’s left thigh. He records that the applicant was aware of ongoing symptoms in the lower back, left hip and knee.
Dr Powell opines that the “mechanism of injury described is sufficient to have caused the injury claimed.” He also opines that the applicant is fit for pre-injury duties.
A/Prof Miniter, orthopaedic surgeon, has provided a report at the request of the respondent dated 12 October 2020.
A/Prof Miniter records that the applicant fell three metres through an aperture and sustained an impact onto the left posterior thigh. He records that the applicant made a very good recovery, returned to his usual duties, and the “matter was entirely closed.”
A/Prof Miniter writes that he has carefully looked through the clinical notes of the applicant’s general practitioner. A/Prof Miniter opines:
“The original fall seems to have been associated with an injury to the left thigh. There are no features of his presentation to suggest injury to the lumbar spine. It would appear that the onset of back pain has occurred without injury, this being in the latter part of 2017 as seen in the General Practitioner's notes. It would appear highly likely therefore that the matter is not related to the original fall. I note that he had a full recovery after the original fall and that he was certified fit for full duties without restrictions at the time that he had a disagreement with his boss and left his employment.”
FINDINGS AND REASONS
Whether the applicant sustained an injury to his lumbar spine, left hip and/or left knee on
1 August 2016
Mr Morgan for the applicant submits that this dispute must be seen in the context of a young man who needs to get back to work as soon as he can because, not being an Australian resident, he has no other income support. The applicant had a traumatic injury, he returned to labouring work as soon as he can, but had ongoing difficulties, especially in his lower back.
Mr Morgan submits that the applicant trusted in the medical practitioners he attended for treatment and the most immediate problems identified by Dr Vakeeswaran were the subject of treatment, but a different doctor was able to confirm lower back pathology. The causal connection between the work injury and the lower back pathology was then explained and confirmed by the applicant’s treating specialist, A/Prof Papantoniou.
Mr Barnes for the respondent submits that the contemporaneous medical records should be preferred over later medical evidence. The contemporaneous medical records for almost 18 months following the work injury do not reveal the applicant having any problems with his lower back. Furthermore, the applicant had returned to his pre-injury duties as a dogman about four months after the work injury and worked for another year with the respondent. That evidence would not support a finding that the applicant had sustained an injury to his lower back on 1 August 2016 or had any ongoing pathology in his lower back as a result of that injury.
Mr Barnes submits that it is more likely that the applicant’s lower back pathology was caused by the nature and conditions of his employment after his return to work, rather than the frank injury on 1 August 2016.
Mr Barnes also submits that whether there is embellishment by the applicant or simply he cannot remember, there is a divergence in the details the applicant provides of the fall on
1 August 2016. The ambulance report and discharge summary record a fall of about one metre, whereas later medical reports record a fall of three metres. Mr Barnes submits that caution must therefore be exercised when considering the applicant’s evidence, and is another reason for preferring those records which were made soon after the work injury.
There are different records made of the distance that the applicant fell on 1 August 2016, with the shorter distance of one metre being recorded soon after the incident, and the longer distance of three metres much later. However, I would accept from the applicant’s description of his fall, even if it be a fall of one metre, that this incident would have been capable of causing injury to the left hip, left knee and lower back.
I would also accept that in the first few months following that incident, the applicant’s main concern was the penetration wound which he had sustained. That particular injury required multiple attendances upon Dr Vakeeswaran to treat and oversee the condition of the left thigh, and two attendances upon a general surgeon to ensure there were no major complications with the wound.
A review of the clinical notes from Rainbow Medical Centre reveals that while the treatment provided by Dr Vakeeswaran concentrated on the wound to the left thigh, the records of physiotherapy treatment provided by Mr Tsui repeatedly refer to restriction of movement in the left hip and left knee due to pain in those body parts.
In Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), DP Roche considered the meaning of a personal injury and said at [38]:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is ‘a sudden identifiable pathological change’”.
In the decision of Felstead Roche DP had said at [81]:
“It follows that the description of a personal injury as “a sudden identifiable pathological change” is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain.”
No specific pathology is identified by any doctors in regard to the left hip or the left knee. A/Prof Papantoniou concludes that the applicant has left knee pathology as a result of the incident on 1 August 2016, but also notes in August 2020 that an MRI scan of the left knee appears normal. Dr Powell accepts that the applicant sustained an injury to his left hip and left knee, but does not make a more specific diagnosis of either body part. Dr Gehr considers it is the injury to the left thigh which causes decreased range of motion in the left hip and left knee.
However, the contemporaneous records made by Mr Tsui of symptoms in the left knee and left hip for over three months provides compelling evidence that the applicant sustained soft tissue injuries to his left hip and left knee as a result of the fall on 1 August 2016.
The issue of whether the applicant’s lumbar spine pathology results from the fall on 1 August 2016 is more contentious.
There is only one reference to lower back symptoms in the clinical notes from Rainbow Medical Centre from the time of the work injury in August 2016 until December 2017, being on 7 November 2016 when Mr Tsui records stiffness in the back and hip. However, the applicant states that physiotherapy treatment included heat packs to the back, and the clinical notes from Mr Tsui record inferential therapy to the applicant’s back.
The applicant’s evidence that he had ongoing pain in his lower back throughout 2017, but that he pressed on with his work with the respondent because of his financial situation is logical and reasonable, and is given added credence by the findings made by his new general practitioner, Dr Moussad, as soon as the applicant starts to attend that doctor for treatment.
Dr Moussad records the applicant having low back pain at the first consultation on
17 January 2018. Two days later Dr Moussad refers the applicant for a CT scan. The report from the CT scan confirms a disc protrusion on the left side at the L5/S1 level.I agree with the submission made by Mr Morgan that it is not the applicant’s fault that the identification of lower back disc pathology does not occur for some 16 months after the work injury. The evidence discloses that the applicant had very specific treatment directed to the wound on the left thigh which allowed him to return to work. The applicant kept on working to maintain his income but reached a point when he needed another opinion on the ongoing lower back pain that he was continuing to experience, and that opinion then very quickly confirmed disc pathology in the lumbar spine.
The expert opinion to support the claim of a lower back injury being sustained on
1 August 2016 rests very much with the opinion of the applicant’s treating specialist,
A/Prof Papantoniou.When A/Prof Papantoniou initially sees the applicant in October 2018, he considers that the severity of the injury and consequent pain “clearly masked” the pain in the applicant’s lower back and left knee “in the short term.”
A/Prof Papantoniou does not explain what he understands to be “in the short term.” It is not apparent from the reports from A/Prof Papantoniou that he is made aware that there was only one reference to lower back pain in 15 months following the work injury in the clinical notes from the applicant’s then general practitioner, and that the applicant had returned to his pre-injury duties as a dogman and performed those duties for at least a year. The record made by A/Prof Papantoniou at the applicant’s first consultation is: “After recovery, he went back to work on light duties.”
However, A/Prof Papantoniou has had the benefit of several consultations with the applicant and has come to the view that the mechanism of injury and the intensity of the trauma are consistent with pathology in the lower back. Significant weight must be given to that opinion of because of the role that A/Prof Papantoniou has as the applicant’s treating specialist.
I prefer the opinion of A/Prof Papantoniou on this issue. Despite the gap in time between the work injury and when the applicant initially sees A/Prof Papantoniou, and the acknowledgement by A/Prof Papantoniou that the applicant continued to work after the injury, it is apparent from both the initial report to Dr Moussad and in the report to the applicant’s solicitors that A/Prof Papantoniou has given considerable thought to the cause of the applicant’s lower back pathology and is of the opinion that the incident on 1 August 2016 is the cause of symptoms in the applicant’s lower back.
Dr Powell also has no difficulty in accepting that the mechanism of injury on 1 August 2016 is sufficient to have caused symptoms in the lower back, when he examines the applicant two years after the work injury.
I agree with the submission made by Mr Morgan that the opinion of A/Prof Miniter is compromised by his understanding of the extent of the injuries sustained by the applicant on 1 August 2016. Although A/Prof Miniter is provided with the clinical notes of Dr Vakeeswaran, A/Prof Miniter makes no mention of the applicant making complaints for a few months of pain and restriction of movement in the left hip and left knee.
The record made by A/Prof Miniter that the applicant made a very good recovery and the “matter was entirely closed”, seems to be based upon a review of relevant medical records and not from engagement with the applicant. The applicant’s evidence is that he did have problems with his lower back despite returning to his pre-injury duties, but this is not explored by A/Prof Miniter.
I do not consider there is any assistance provided by Dr Gehr on this issue. Dr Gehr’s opinion that the applicant’s lower back condition is a combination of either a direct injury on
1 August 2016 or due to an awkward and difficult gait due to pain in the left thigh and hip is equivocal and lacks resolve.I do not accept the submission made by Mr Barnes that the cause of the applicant’s lower back condition is more likely due to the nature and conditions of his employment after the applicant’s return to work because there is no expert opinion which supports this.
I also do not consider that the incident in September 2017 when the applicant fell at work and grazed his inner thighs has had any effect upon the injuries which the applicant sustained to his left thigh, left hip, left knee and lower back on 1 August 2016. The applicant had only one day off work as a result of this incident and attended Dr Vakeeswaran on two occasions over a four day period.
A review of the evidence reveals that as a result of the incident on 1 August 2016, the applicant sustained a serious penetration injury to his left thigh which required intensive treatment for some months.
The records made by Mr Tsui of pain and restriction of movement in the left knee and left hip in the months following the incident allows me to be satisfied that the applicant did sustain injury to his left hip and left knee in that same incident.
The applicant provides a logical and reasonable explanation for the delay in seeking medical treatment for his lower back symptoms. A/Prof Papantoniou is then best placed to provide an opinion on the cause of the applicant’s lower back symptoms, and I have provided reasons as to why I have preferred and accepted the opinion of A/Prof Papantoniou on the issue of causation. Dr Powell also accepts that the applicant sustained an injury to his lower back on 1 August 2016.
There will therefore be a finding that the applicant sustained an injury to his lumbar spine, left hip and left knee in the course of his employment with the respondent on 1 August 2016.
The claim for weekly payments of compensation
Dr Moussad provides Certificates of Capacity throughout 2018 and up until 12 June 2019 which certify the applicant being fit for some type of employment but with a five kilogram limit on lifting and a standing tolerance of 30 minutes due to a lumbar spine sprain, left hip sprain, and injuries to both knees.
On 12 June 2019 Dr Moussad issues a Certificate of Capacity which certifies the applicant as having no current work capacity for those same injuries. Dr Moussad continues to certify the applicant as having no current work capacity thereafter.
Dr Gehr sees the applicant in October 2019 and opines that the applicant is not able to get back to his pre-injury occupation and requires a formal occupational assessment to see what the applicant is capable of.
The applicant is still working when he initially sees A/Prof Papantoniou in October 2018. The applicant does not see A/Prof Papantoniou again until 6 November 2019. A month later in a report dated 18 December 2019, A/Prof Papantoniou writes that the applicant “remains unfit for work until we see the ultimate outcome of the nucleoplasty.”
A/Prof Papantoniou sees the applicant again on 12 February 2020 and 25 June 2020. In a report dated 25 June 2020, A/Prof Papantoniou writes: “At present he remains unfit for work.”
A/Prof Papantoniou then opines in the report he provides to the applicant’s solicitors dated 12 July 2020:
“With his ongoing lower back pain and sciatica, being mindful of his restrictions caused by the pain being aggravated by half an hour of most activities, I do not believe he would be fit for any work at present.”
A/Prof Papantoniou has also recommended a L5/S1 discectomy since August 2020, and opines that the applicant is unfit for work until he has been appropriately treated.
A/Prof Miniter does not provide any opinion on the applicant’s work capacity, presumably because he does not consider that the incident on 1 August 2016 has contributed to any lower back pathology. A/Prof Miniter does record that the applicant has not worked for the last two years and that the applicant contends it is his back pain which is by far the most significant problem at this time.
Although the applicant states that he stopped work with Urban Apartments in January 2019 due to serious pain in his lower back, and the claim for weekly payments for no current work capacity is made from 1 April 2019, Dr Moussad continued to provide Certificates of Capacity until 12 June 2019 certifying the applicant being able to work 48 hours per week with some restrictions. Dr Moussad has provided no explanation as to the sudden change whereby the applicant had been able to work 48 hours per week to the applicant being not able to do any work at all.
President Keating in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) considered the claim for a worker’s incapacity where there was no medical report from the worker’s general practitioner but only medical certificates and said at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
It is therefore difficult to have any confidence in the evidence regarding the applicant’s incapacity for work until late 2019 when the applicant has more regular contact with
A/Prof Papantoniou. I do accept the opinion of A/Prof Papantoniou on the issue of the applicant’s incapacity for work once regular review of the applicant is undertaken by A/Prof Papantoniou because of his role as the applicant’s treating specialist.It is apparent from the reports that A/Prof Papantoniou provides to Dr Moussad in late 2019 and early 2020, and then in the more comprehensive report dated 12 July 2020, that
A/Prof Papantoniou has decided that the applicant has no capacity for work until the applicant has had the benefit of surgery, which initially was to be a L4/5 nucleoplasty, but is now recommended to be a L5/S1 discectomy.There is no available evidence which might support a finding that the applicant has a partial incapacity for work. The applicant does not provide any details of his past educational or job experience. A/Prof Papantoniou writes that he is unaware of any particular educational qualifications, training, experience or employment skills which would make the applicant suitable for other employment. Dr Powell records in 2018 that the applicant was then 21 years of age and had worked as a dogman with the respondent for three years.
The applicant should therefore receive the benefit of an award of weekly payments of compensation on the basis of having no current work capacity. Given the uncertainty of the evidence on this issue before the applicant returns to see A/Prof Papantoniou on
6 November 2019 and thereafter undergoes regular review by that specialist, I consider that the appropriate date for the start of weekly payments of compensation should be
6 November 2019. I do not have any confidence from the available evidence in determining a date earlier than this of when the applicant had no current work capacity.
PIAWE has been agreed at $956.65. Eighty per cent of PIAWE is $765.32.
There will be an order that the respondent is to pay the applicant weekly payments of compensation at the rate of $765.32 per week from 6 November 2019 to date and continuing pursuant to section 37 (3) of the 1987 Act.
The claim for medical expenses
The applicant seeks an order pursuant to section 60 (5) of the 1987 Act that the respondent pay the cost of a L5/S1 discectomy and related costs, as recommended by
A/Prof Papantoniou.I have accepted that the applicant did sustain an injury to his lumbar spine on 1 August 2016, and that is based very much on the opinion of A/Prof Papantoniou in his capacity as the applicant’s treating specialist.
A/Prof Papantoniou states in his most recent report dated 26 August 2020 that the large disc prolapse which has now been identified on an up to date MRI scan means that the applicant now needs to proceed to an open L5/S1 discectomy as soon as possible. A/Prof Papantoniou writes:
“I have explained my findings and the pathology to Mr Tata. I have demonstrated this on the images and on models. I have gone over the further non-operative and operative management and I have recommended he have an urgent LS/Sl discectomy.”
There is no medical evidence which disputes the surgery which is now recommended by A/Prof Papantoniou. A/Prof Miniter opines that “no treatment should be applied that is related to the initial workplace injury in August 2016”, but that is based on his opinion that the applicant did not sustain an injury to the lumbar spine in that incident. A/Prof Miniter acknowledges a large disc protrusion to the left side that is found on the MRI scan taken in August 2020.
I have accepted the opinions of A/Prof Papantoniou in regard to causation of injury and incapacity for work in his role as the applicant’s treating specialist, and this should be extended to the opinion on the reasonable necessity for surgery. A/Prof Papantoniou has properly explained the reason for a L5/S1 discectomy in his most report dated
26 August 2020. The surgery aims to improve the applicant’s functional capacity. The cost of that surgery should be met by the respondent.There will therefore be an order that the respondent is to pay the costs of the L5/S1 discectomy proposed by A/Prof Papantoniou, and expenses reasonably incidental to that surgery.
The ARD also includes a claim for the payment of past medical expenses which total $21,736.50, and which is for treatment provided throughout 2018 by a chiropractor,
Dr Hanna.
The parties agreed that I not adjudicate as to whether the treatment provided by Dr Hanna was reasonably necessary, but instead to make a general order that the respondent pay the costs for treatment for those parts of the applicant’s body which are found to have been injured on 1 August 2016.
There will therefore be an order that the respondent pay the reasonably necessary medical expenses incurred by the applicant for treatment of the wound to his left thigh and injury to the lumbar spine, left hip and left knee.
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