Tramontini v R & K Davies Pty Ltd
[2010] NSWWCCPD 30
•25 March 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Tramontini v R & K Davies Pty Ltd [2010] NSWWCCPD 30 | |||||
| APPELLANT: | Dante Tramontini | |||||
| RESPONDENT: | R & K Davies Pty Ltd | |||||
| INSURER: | GIO Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-5194/09 | |||||
| ARBITRATOR: | Mr M Oldfield | |||||
| DATE OF ARBITRATOR’S DECISION: | 17 November 2009 | |||||
| DATE OF APPEAL DECISION: | 25 March 2010 | |||||
| SUBJECT MATTER OF DECISION: | Section 4 of the Workers Compensation Act 1987; causation; weight of evidence | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| REPRESENTATION: | Appellant: | Owen Hodge Lawyers | ||||
| Respondent: | Gillis Delaney Lawyers | |||||
| ORDERS MADE ON APPEAL: | Paragraphs (1), (3) and (4) of the Certificate of Determination dated 17 November 2009 are confirmed. | |||||
| Paragraph (2) of the Certificate of Determination dated 17 November 2009 is revoked and the following order is made in its place: | ||||||
| “2. That the dispute concerning further whole person impairment with respect to the applicant’s lumbar spine and right upper extremity since the issue of Dr David Maxwell’s Medical Assessment Certificate dated 4 November 2005 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The date of injury is 7 June 2002 and the assessment is to be undertaken under the whole person impairment regime.” | ||||||
| No order as to costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
Dante Tramontini (‘the worker’), who is 62 years of age, was born in Argentina and arrived in Australia in 1982. Since his arrival in Australia, he has worked as a motor vehicle panel beater. He was employed in that capacity by R & K Davies Pty Ltd (‘the employer’) in 1993 and remained in that employ until 2002.
In 2002 the worker received injury in the course of his employment when, whilst carrying a car seat, he tripped on the edge of a raised rim and fell to the ground. Whilst the evidence is scant, it seems that the worker has not resumed duties since the time of that injury and has been paid weekly compensation benefits by his employer to date. It is the worker’s allegation that he injured his neck, right shoulder and back in the subject fall.
A dispute arose between the parties concerning the worker’s entitlement or otherwise to lump sum compensation. Proceedings were commenced in the Commission on behalf of the worker being matter no. 8470 of 2005 in which, it seems, a claim was made with respect to whole person impairment (‘WPI’). The evidence does not reveal the precise sequence of events however it is clear that the claim, which apparently specified the right shoulder, cervical spine and lumbar spine as being the relevant body parts or systems requiring assessment, was referred for assessment to Dr David Maxwell, an Approved Medical Specialist (‘AMS’). That assessment was conducted in November 2005 and a Medical Assessment Certificate (‘MAC’) was issued by Dr Maxwell on 4 November 2005. That certificate was accompanied by a lengthy report detailing the information that had been made available to the AMS, relevant history concerning the worker’s injury and subsequent treatment, and relevant findings following physical examinations. The MAC noted 9 per cent WPI in respect of the right shoulder, 15 per cent WPI in respect of the cervical spine and 0 per cent WPI in respect of the lumbar spine. The AMS certified that a deduction of 15 per cent in respect of the cervical spine assessment should be made pursuant to section 323 of the Workplace InjuryManagement and Workers Compensation Act 1998 (‘the 1998 Act’) given his determination of there being a pre-existing injury, condition or abnormality. The total WPI was certified by the AMS as being 9 per cent. Dr Maxwell’s assessment was the subject of an appeal brought by the worker. The Registrar of the Commission referred the matter to a Medical Appeal Panel (‘MAP’) for review. The MAP delivered a decision on 15 May 2006. The MAC of Dr Maxwell was confirmed, however certain observations were made in the course of those reasons stated in relation to the method of assessment adopted by Dr Maxwell concerning a detected neurological deficit. This matter is addressed more fully below.
It seems that the worker was subsequently paid an appropriate sum in respect of the assessment made by the AMS. Thereafter the worker’s solicitor arranged a medico-legal examination of the worker by Dr Michael Fearnside, neurological surgeon. Dr Fearnside provided the results of his examination and assessment by report dated 9 December 2006. That report included assessments of WPI in respect of the worker’s neck, his station and gait, right shoulder and lumbar spine. Dr Fearnside expressed the view that the worker suffered a total WPI of 32 per cent.
By letter dated 3 May 2007, the worker’s solicitors made a claim upon the employer in respect of 32 per cent whole person impairment together with a claim for pain and suffering pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). That notice did not make reference to any earlier payment of lump sum entitlement that may have been made to the worker, nor did it specify that the claim was in respect of an alleged deterioration of the worker’s condition since the conduct of Dr Maxwell’s examination and the issue of his MAC. That claim was denied on behalf of the employer by its solicitors and, in correspondence dated 30 February 2008, the employer gave notice of such denial in accordance with section 74 of the 1998 Act. That notice appears to have confused the nature of the claim brought by the worker as it states in part “…we are instructed that liability for weekly compensation benefit [sic] has been declined.” Notwithstanding that reference to weekly compensation, the content of the notice contained in the solicitors’ correspondence addresses matters relevant to a claim pursuant to sections 66 and 67 of the 1987 Act.
The evidence is again scant, however it appears that proceedings were commenced on behalf of the worker in matter no. 1421 of 2008. The evidence includes a copy of a consent order made by the Commission on 5 May 2008 which records the discontinuance of those proceedings. Nothing more is known concerning the nature of this claim or the circumstances of its discontinuance.
The dispute concerning the worker’s entitlement to lump sums led in due course to the commencement of the present proceedings. An Application to Resolve a Dispute (‘ARD’) came before an Arbitrator for arbitration/conciliation on 14 October 2009 at which time each party was represented by Counsel. The claim was limited to the question of the worker’s entitlement to lump sums and it is important to note that significant amendments to the ARD were made by order of the Arbitrator at the hearing. The nature of those amendments is addressed hereunder. The matter proceeded to hearing and the Arbitrator reserved his determination. A Certificate of Determination was issued on 17 November 2009 and that certificate was accompanied by a Statement of Reasons (‘Reasons’).
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 17 November 2009, recorded the Arbitrator’s orders as follows:
“The Commission determines:
1. That there is an award to the Respondent in respect of the Applicant’s claim of basilar invagination.
2. That the remaining dispute concerning further permanent impairment to the Applicant’s lumbar spine, cervical spine and right upper extremity (right shoulder) is to be referred to the Registrar to appoint an Approved Medical Specialist to assess. Date of injury is 7 June 2002 and the assessment is to be undertaken under the whole person impairment regime.
3. That the Application to Resolve a Dispute and attached documents together with the Reply and attached documents (with the exception of the medical report of Dr G Boyce dated 5 September 2006, which was withdrawn by the Respondent) and the clinical notes of Dr Tai attached to Direction for Production Form and, Statement of Reasons for Decision of the Medical Appeal Panel dated 15 May 2006, are admitted into the proceedings and are to be disclosed to the Approved Medical Specialist.
4. That the Respondent pays the Applicant’s costs as agreed or assessed. The Commission certifies this matter as complex and orders uplift of 20%.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The terms of the Arbitrator’s determination, particularly that found in paragraph (1) of the Certificate of Determination, may only be properly understood in the context of the issues which arose for determination following the amendment to the allegations of injury referred to in [7] above. Those amendments are noted by the Arbitrator at 5.1 of his reasons. Shortly stated the allowed amendments, over the objection of the employer, included the words “and basilar invagination” after the word “back” at part 4 of the ARD where injury is described. At 5.6 of the ARD, the Arbitrator permitted an amendment whereby the ‘Body Parts/Systems Claimed’ in the table appearing there was to read as follows:
“Cervical spine (neck), basilar invagination and its effects including station and gait, right upper extremity (right shoulder) and lumbar spine (back).”
There was no amendment to the percentage as claimed in the ARD at the time of filing, that being particularised, as assessed by Dr Fearnside, at 32 per cent. It was made clear at the hearing, it seems for the first time, that the worker’s claim was in respect of an “increase” in impairments of his back, neck and right shoulder and that with respect to the neck, it was the worker’s allegation that the subject injury had aggravated an underlying or pre-existing condition being basilar invagination. It is unfortunate that these matters were not made clear by those representing the worker at the time the original claim was brought against the employer and, particularly, by the manner in which the claim was particularised in the documentation filed with the Commission. The failure to attend to a proper and timely particularisation of the claim has given rise to considerable confusion and the need for a very late amendment, which in turn, unsurprisingly, provoked objection by the employer and the need for the Arbitrator to deal with such objections before addressing the dispute.
An application seeking leave to appeal against the decision of the Arbitrator was filed on behalf of the Appellant on 14 December 2009.
ISSUE IN DISPUTE
The issue in dispute on this appeal concerns the question as to whether the Arbitrator erred in his finding that the worker’s condition of basilar invagination had not been aggravated, accelerated or exacerbated by the subject injury.
The written submissions furnished in support of this appeal purport to state two distinct grounds of appeal. They appear at part B(2) of the submissions. The matters there stated do not define grounds of appeal but rather constitute submissions in support of a proposition that the Arbitrator erred in his approach to the evidence and thereby committed factual error. The matters stated relate to the Arbitrator’s evaluation of the evidence of two expert medical witnesses called on behalf of the worker, namely Dr Kevin Tai and Dr Charles Teo.
ON THE PAPERS REVIEW
Section 354(6) of the the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Direction Numbers 1 and 6, the documents before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
The dispute concerns the Arbitrator’s determination of a question concerning liability and there is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.
The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal, and I so order.
THE EVIDENCE
A Worker’s Compensation Claim form addressed to GIO Workers Compensation (NSW) Limited (the Respondent’s workers compensation insurer) signed by the worker dated 19 June 2002 concerning the subject injury is in evidence. That document records the worker’s response to the question “What part/s of your body is/are injured?” to be “right shoulder, lower back”.
Medical Appeal Panel statement of reasons
Whilst there is no record concerning tender by either party of the Statement of Reasons for the decision of the Medical Appeal Panel dated 15 May 2006 that document is apparently treated by the parties as being before the Commission and an order concerning its admission ‘into the proceedings’ is expressly noted by the Arbitrator at paragraph (3) of the Certificate of Determination. It may be treated as forming part of the record, and was specifically referred to during the course of submissions by Counsel at the hearing before the Arbitrator. As noted earlier, that decision confirmed Dr Maxwell’s assessment as contained in his MAC. Those reasons included the following matters which are of particular significance on this appeal:
“With regard to the cervical spine the AMS did not consider that the Appellant had suffered an injury to his cervical spine. The matter had been referred to the AMS on the basis that there was an injury to the neck and accordingly, the AMS was required to accept the existence of such an injury and to assess the impairment resulting from it. (see Wikaira v Registrar of the Workers Compensation Commission [2005] NSWSC 954).
The Panel has considered the various medical reports and examination findings. There is some mild restriction of movement but as with the back there was no asymmetry of movement, no muscular guarding and no evidence of neurological compromise. The Panel is of the view that the cervical spine is assessable as DRE Category I resulting in a 0% impairment.
The Panel notes that the AMS made an assessment of whole person impairment based upon a neurological deficit involving the mid-brain. The AMS was of the view that this impairment was unrelated to any injury suffered in the accident. The Panel notes that the assessment was made pursuant to chapter 13 of the AMA 5 guides. That chapter relates to the central and peripheral nervous system. As such the assessment is not in respect of an impairment to the cervical spine. The referral did not request an assessment of the central and peripheral nervous system or refer to any injury at the base of the skull. The Panel considers that any assessment of impairment based upon the central and peripheral nervous system was irrelevant to the matters referred to the AMS.
For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 7 December 2006 given in this matter should be confirmed.”
The worker’s evidence
A written statement by the worker was included amongst those documents attached to the ARD. That statement was apparently signed in the year 2005, however the specific date in that year is unknown. The worker was born in Argentina and has resided in this country since 1982. Following his arrival he had been employed as a panel beater by various companies. He commenced employment with the Respondent in approximately 1993. That employment ceased in 2002 following the subject injury. He is married and has two adult children.
The worker described the injury which occurred on 7 June 2002 as he was carrying a car seat at his place of employment. He tripped and fell on his shoulder. He stated “Initially, after the incident I felt dizzy and confused and sat down for a period of one hour. I then drove home slowly and rested. I consulted my General Practitioner, Dr Tai that day. I experienced pain in my right shoulder and back. I was referred for x-rays and various investigations and physiotherapy.”
The worker in his statement detailed his medical history including surgical treatment of his right shoulder, which took place in September 2002 and May 2003. Dr Daniel Biggs, orthopaedic surgeon, was the treating specialist.
The worker stated that following the injury, he underwent physiotherapy for 4 to 6 months following which he underwent a course of hydrotherapy, which was “cancelled” after 4 months “due to dizziness”. It is stated that a CT scan of the worker’s neck conducted thereafter demonstrated “basilar invagination”. The worker was referred to Dr Charles Teo, neurosurgeon. The worker stated that before his work injury, he did not experience any problems with his shoulder or neck, however, since that time, he has had problems with his shoulder and neck which had become worse. The worker describes the various symptoms which he experiences including bouts of dizziness. It is stated that on 30 July 2003 he was involved in a motor vehicle accident when his car was struck from behind. That accident caused pain in the right shoulder, lower back and neck. The worker stated that his neck condition had become slightly worse as a result of the car accident, that there had been some improvements since, although “not quite to the level I was prior to the motor vehicle accident.”
A report of Dr Fearnside, dated 9 December 2006, was tendered on behalf of the worker. That report contains a description of the subject accident and notes the injuries sustained as being to the right shoulder, to the neck (right side) and to the back. The worker’s history as recorded included details of two surgical procedures at the hands of Dr Biggs. Dr Fearnside also records that on 8 April 2003 the worker experienced a severe episode of dizziness whilst leaving the water during a hydrotherapy session. Dr Fearnside notes the worker’s report of having experienced some dizziness prior to this episode but not attaching any significance to it. The worker’s referral to Dr Teo is recorded and it is noted that an MRI scan of his neck revealed a “congenital abnormality”. The motor vehicle accident, which occurred in July 2003, was noted in that report. The injuries in the motor vehicle accident, as recorded by Dr Fearnside, were “an aggravation of the neck injury” and “an aggravation of his right shoulder”. Dr Fearnside records that since the accident in July 2003, the worker had experienced ongoing neck pain, which he thought had improved “a little”. Other symptoms were recorded including sensory loss in the right thumb and generalised weakness in his arms and legs causing problems with his balance.
Dr Fearnside recorded the findings of numerous neurological investigations and other studies and his findings on physical examinations.
Dr Fearnside had before him a copy of the report furnished by Dr Maxwell which accompanied his MAC. Dr Fearnside noted that there were differences with respect to history between that which he obtained and those matters recorded by Dr Maxwell. Dr Fearnside summarised those reports which he had before him from Dr Teo and Dr John Beer. It is to be noted that there is no evidence otherwise from Dr Beer.
Dr Fearnside noted that an appeal had been brought by the worker against the determination of the AMS. However, he noted that he did not have a copy of the determination of the Medical Appeal Panel. Dr Fearnside expressed his agreement with Dr Maxwell that the worker “has reached maximum medical improvement”. Dr Fearnside proceeded to make the assessment as appears in [4] above and noted in his report his assumption that the “direction from the Arbitrator in respect of ‘cervical spine’ included Mr Tramontini’s ataxia which, in my opinion, is more properly dealt with as a CNS impairment because the pathological area is the medulla and not the cervical spinal cord. I have assumed that it has been determined the ataxia is a consequence of the accident on 7 June 2002”.
The worker relied on a number of medical reports prepared by Dr Teo. In the first of those reports dated 17 June 2003, Dr Teo recorded a history of “immediate shoulder and neck pain” following the subject accident. Dr Teo concluded, having regard to x-rays, that the worker “certainly does have severe basilar invagination”. Dr Teo then arranged for MRI scan investigations to be conducted. That MRI confirmed that the worker had severe basilar invagination with indentation of his medullar and marked platybasia. In a report dated 5 August 2003, Dr Teo strongly recommended surgical intervention. The worker declined that treatment. Later reports from Dr Teo, dated 2 September 2003 and 2 December 2003, record a deterioration of the worker’s physical condition. The worker continued to decline surgical intervention. Some improvement was recorded in Dr Teo’s report of 24 February 2004. In a report dated 20 April 2004, Dr Teo expressed the following concerning the worker’s condition of basilar invagination:
“Mr Tramontini has a condition called basilar invagination. This is a condition whereby patients suffer from neurological problems when their spinal cord or brain stem is compressed by bony structures. This occurs because of instability and very slow chronic deformity of the skull base and its relationship to the cervical spine. In layman’s terms, the cervical spine essentially migrates up into the skull base and thereby compressing the neural and spinal structures in this area. This is a condition that is mostly seen in children but has been seen in adults and is probably not related to trauma. However, what I can say quite definitively that his symptoms did not start until the accident on 30 July 2003 [sic], and I am sure that this exacerbated a pre-existing condition. My point is that Mr Tramontini probably had this condition for many years and certainly well before this injury on 30 July 2003 [sic], but that the injury gave him further inflammation and compression at the skull base level, thereby causing a decompensation of a previously well compensated disease.”
In a letter dated 28 June 2005, Dr Teo corrected the history as recorded in his earlier report. The text of his correspondence appears at [55] below.
In a letter dated 6 August 2008, Dr Teo recorded that he had further reviewed his earlier reports. The final statement of opinion by Dr Teo appears at [56] below.
The worker relied upon a report of Dr Kevin Tai, general practitioner, dated 1 June 2004. The history of the subject injury is there recorded and Dr Tai noted that the worker “complained of pain in the right shoulder and lower backache”. Dr Tai’s initial examination revealed painful abduction of the right shoulder and some muscular discomfort of the lumbar spine. X-rays of the right shoulder and the lumbar spine were arranged and the findings are there described. Dr Tai’s diagnosis was that the worker had sustained right shoulder impingement and lower back pain as a result of the fall on 7 June 2002. A later MRI scan revealed a supraspinatus tendon tear. Dr Tai recorded the surgical treatment conducted by Dr Biggs concerning the right shoulder. At page 2 of that report, the following was recorded by Dr Tai:
“Of note, whilst Mr Tramontini was having hydrotherapy on 8/4/2003, he developed dizziness, nausea, slurred speech and blurred vision. He also complained of neck pain and increased dizziness with neck movements. The hydrotherapy sessions were subsequently terminated. CT scan of the neck showed ‘marked basilar invagination with congenital anomaly at the craniocervical junction and associated degenerative change’. Mr Tramontini was referred to a neurosurgeon, Dr C Teo who recommended surgery. It is possible that the fall on 7/6/2002 could have aggravated a neck condition that Mr Tramontini was unaware of.”
The employer’s evidence
The employer at the hearing tendered copies of those documents produced by Dr Tai in response to a direction for production served upon him. Those documents comprise the complete records held by that practitioner including clinical notes concerning treatment of the worker. The first entry in the clinical notes is dated 30 May 1998 and the last entry appears to be 30 July 2009. Those clinical notes were handwritten until 29 June 2004 following which the records were typewritten and appear to be produced electronically. Those records confirm that the worker consulted Dr Tai on the date of his injury and detailed entries have been recorded on that occasion as well as during subsequent consultations. Details of those entries are discussed hereunder.
The employer relied upon documentary material which had earlier been adduced by the worker including Dr Maxwell’s MAC and the worker’s claim for compensation dated 19 June 2002. The employer also tendered a copy of a notice pursuant to section 54 of the 1987 Act and section 74 of the 1998 Act, dated 15 June 2009 issued by the insurer’s representative to the worker. That document did not enclose copies of annexures to the notice as outlined at page 3. There is also a notice purporting to be issued pursuant to the aforementioned sections on behalf of the insurer by the solicitors acting for the employer dated 13 February 2008. Each notice stated as a reason for declining the claim that the subject injury had not caused the condition of basilar impression suffered by the worker. The notice issued by the insurer’s representative also stated that the claim had been declined upon the further ground that there had been “no further deterioration” of the worker’s condition. That notice impliedly referred to alleged deterioration since the issue of Dr Maxwell’s MAC.
The employer relied upon two reports from Dr Ross Mellick, consultant neurologist, each dated 22 September 2005. Dr Mellick recorded a history of the subject injury, noting that “The main symptom at that time was pain in the right shoulder. There was also discomfort in the posterior cervical region, on the tops of both shoulders and also between the shoulder blades.” Dr Mellick also recorded the worker’s experience of severe dizziness following a hydrotherapy session and recorded that the worker told him that “prior to this day, he had complained to the general practitioner about dizziness, however, this event, some months after the fall, was the most severe episode he had experienced.”
Dr Mellick noted that there had been a diagnosis of “a long standing basilar impression of the base of the skull.” Dr Mellick, when expressing his opinion, accepted that the worker continued to experience symptoms related to his shoulder injury. Dr Mellick also noted a number of other symptoms which he stated were clearly of neurological origin. It was stated at page 5 of that report “the fall which occurred on 7/6/02 was not associated with any features which established an aetiological link between the basilar impression and any symptoms of unsteadiness or brainstem abnormality arising as a result of that basilar impression”. Dr Mellick did not identify any significant lumbar spine pathology resulting from the fall in June 2002.
In the second of those reports dated 22 September 2005, Dr Mellick stated that he did not regard the fall to have resulted in any contribution to his “neck-head disability”. Dr Mellick further stated that he did not identify any permanent disability as a result of injuries suffered at work.
The employer relied upon a report of Dr Stephen Potter, rheumatologist, dated 20 January 2009. At the commencement of that report, Dr Potter referred to discussions he had on the day of examination, being 16 January 2009, with the worker’s general practitioner, Dr Tai. It was recorded that Dr Potter and Dr Tai agreed that the worker is permanently unfit to do any physical work. Dr Potter noted that “he is unsafe and unsteady and has a major neurological disorder caused by a profound invagination of the medulla oblongata into his spinal cord and neck.” It was Dr Potter’s view that that condition and it’s consequences, being in-coordination, unsteadiness and neurological deficit “has nothing to do with his injury but defines the incapacity”. The history as recorded by Dr Potter included a notation that the worker continues to receive weekly compensation benefits. It was Dr Potter’s view that the worker’s complaints “are typical of neurological disorder and abnormal illness behaviour, not explainable by injury”.
SUBMISSIONS, DISCUSSION AND FINDINGS
It is clear that the worker challenges the Arbitrator’s finding of fact concerning his failure to prove a causal nexus between the subject injury and the aggravation and exacerbation of the pre-existing condition described as basilar invagination. It is submitted that the Arbitrator “erred in placing too great a weight on the clinical notes of (the worker’s) GP, Dr Tai.” Particular attention is drawn in the course of submissions to the Arbitrator’s findings as recorded at [5.23] of Reasons where it was stated:
“I am not satisfied that a causal link has been established to relate the basilar invagination condition to the fall of 7 June 2002. The best contemporaneous evidence is the clinical notes of Dr Tai. It was not until April 2003 that there is a recording of dizziness symptoms, which arose, apparently, whilst undertaking hydrotherapy treatment. It was arising from that incident that investigations were undertaken and the diagnosis of basilar invagination was made. Referral to Dr Teo followed, further MRI studies confirmed the original diagnosis and the rest is history. There is too long a period between the time of the incident up to the manifestation of symptoms to be an unbroken chain between the two. It was co-incidental that Mr Tramontini suffered basilar invagination 10 months following the workplace fall and I am satisfied on the evidence the fall did not play a part in either causing or aggravating the condition.”
It is the worker’s complaint on this appeal that the Arbitrator has placed “too great a weight on Dr Tai’s clinical notes and the presumed accuracy of the notes.” It is suggested that Dr Tai had failed to record complaints made by the worker, at the time of his first consultation, of experiencing pain in his neck and dizziness following the fall. It is put that Dr Tai, as a general practitioner, “may not be equipped with the expertise required to identify and assess neurological symptoms”. It is also argued that the clinical notes of Dr Tai “do no more than record his immediate concern for (the worker’s) quite serious right shoulder and back complaints”.
The evidence of the worker which was before the Arbitrator is to be found in his statement made in 2005 referred to above. That evidence includes the statement that the worker felt dizzy and confused and sat down for a period of one hour following the fall. The worker further states, as earlier noted, that he consulted Dr Tai on that day at which time he experienced pain in his right shoulder and back. An examination of Dr Tai’s notes confirms that the worker complained of lower backache and that he was limping and that he complained of right shoulder and arm pain. The notes record that x-rays were arranged concerning the right shoulder and the lumbosacral spine. Nowhere in the worker’s statement is it asserted that he complained to Dr Tai concerning dizziness or neck pain on that occassion. Whilst there is no doubt that the worker has, on subsequent occasions when examined by Doctors other than Dr Tai, given a history of neck discomfort or dizziness on the day of the fall and persisting thereafter, there is no direct evidence from the worker that such complaints were made to Dr Tai on that day.
It is correct, as asserted by the worker, that the Arbitrator has placed particular weight upon those matters recorded from time to time in Dr Tai’s clinical notes. The Arbitrator’s observation that the notes represented the most contemporaneous available records cannot be criticised. They are the records of a medical practitioner maintained in the course of his practice, and a scrutiny of those notes, made on the day in question and on subsequent occasions, reveals that Dr Tai consistently maintained a detailed and careful record of his attendances upon the worker. In assessing the evidentiary weight of those records it is of particular relevance, in my view, that the worker attended Dr Tai frequently immediately following the subject injury. By way of illustration, the clinical notes recorded at least seven attendances during the month of June 2002, each of which concerned treatment and follow-up relating to the consequences of the subject injury. Those notes demonstrate that Dr Tai has recorded both detailed and extensive notes including particulars of complaints made by the worker, his findings on examination, details of referral for investigations and for specialist treatment, and medication prescribed. On occasions, advice given by the doctor is noted. The relevant consultations took place on 7, 8, 12, 14, 19, 24 and 27 of June 2002. On any assessment, these records of Dr Tai may be considered thorough.
It should be noted that the copy of Dr Tai’s notes which remains with the Commission’s file is incomplete in that pages 10, 12 and 20 are missing. In these circumstances, the parties were requested by the Commission to make available copies of those absent pages. A complete copy of the clinical notes has been produced by the parties. I have marked those documents with a letter “A” and they remain with the Commission’s record together with those produced at the hearing.
The notes demonstrate that the worker attended Dr Tai regularly during the months following the subject injury. Contrary to what was put on behalf of the worker at the hearing before the Arbitrator, there is a record of an attendance on 4 September 2002, during which a notation “felt dizzy, nausea after exercise yesterday” appears. This entry occurs where Dr Tai’s notes are handwritten and, by reason of the poor quality of the copy, it is somewhat difficult to discern the context of that notation. It is clear that it follows immediately after a note appears concerning “blood test”. The blood pressure was noted immediately thereafter and it is significant, in my view, that it was included in a paragraph numbered “2” which follows a paragraph numbered “1”. The first paragraph of that day’s entry concerns the orthopaedic problems experienced by the worker following the subject injury. It is reasonably clear that the entries in paragraph 2 concern general health problems and, significantly, there is no suggestion in the notes that the reported dizziness relates historically to the subject injury.
The records demonstrate regular attendances by the worker upon Dr Tai and the notes concerning a consultation on 7 April 2003 record, again in a paragraph numbered “2”, which is separated from the orthopaedic matters, “past 1 week intermittent dizziness with movement”. On the following day, 8 April 2003, a consultation was recorded by Dr Tai in the following terms “Was dizzy today whilst having hydrotherapy no LOC. Has blurred vision, nausea, slurred speak, c/o pain in neck. Rapid head movement – (increased) dizziness.” On this occasion the notes recorded referral for a cervical spine x-ray.
A consultation dated 11 April 2003 was recorded in Dr Tai’s notes. The result of a cervical spine x-ray taken earlier is recorded as “? basilar impression”. The notes recorded that the worker was referred for a CT scan.
The next consultation recorded by Dr Tai occurred on 14 April 2003. On that occasion, it is noted that the CT demonstrated marked basilar invagination. The records included a notation of “some numbness felt in the lateral (R) thigh, experiencing dizziness but noticed tending to walk to (R) side. Has lower neck pain.” A referral to Dr C Teo was noted.
The worker tendered in evidence correspondence dated 8 April 2003 from Ms Debra Cush, physiotherapist, addressed to Dr Tai. That correspondence confirmed that the worker, for some unspecified period of time, attended hydrotherapy supervised by Ms Cush. It recorded that, on 8 April 2003, the worker experienced significant dizziness shortly after entering the pool that subsequently increased. Ms Cush advised Dr Tai that the worker was agitated, and had slurred speech, severe nausea and blurred vision. Ms Cush recorded that after she had questioned the worker closely, he reported “experiencing increasing [sic] in dizziness over the last two weeks with neck flexion, extension and rotation…..”.
In submissions, the worker concedes that he is unable to explain “why Dr Tai made no note” of dizziness and neck pain but the assertion is made that “he informed Dr Tai that he experienced those pain in his neck and dizziness after the fall at work.” The statement to which reference has been made at [21] above, does record that the worker felt dizzy and confused immediately after the fall. That statement records that he sat down for the period of one hour. It is significant, in my view, that the worker’s statement does not include any reference to neck pain having been experienced on the day of the fall. In particular, that statement does not contain an assertion that the worker advised Dr Tai of neck pain and dizziness during his first consultation post injury.
I reject the suggestion put on behalf of the worker in submissions that Dr Tai, as a general practitioner, may not be equipped with the expertise required to identify and assess neurological symptoms. I have no hesitation in drawing an inference from the contents of Dr Tai’s notes that he is a most thorough and capable clinician, a meticulous record keeper and a practitioner who, when treating the worker, was careful on every occasion. Where complaint was made of a spinal or joint symptom the patient was examined to determine the existence of any relevant neurological signs. The worker’s submission challenging Dr Tai’s qualifications is rejected.
The thoroughness of the notes to which I have earlier referred leads me to conclude that the worker’s suggestion in submissions that Dr Tai had in some way been distracted from his neck and dizziness problems by the “quite serious right shoulder and back complaint” cannot be accepted. I also reject the suggestion made in the course of submissions that Dr Tai may, in some way, have failed to identify the neck problem by reason of the existence of the right shoulder complaint. The submission at 3.9 concerning the administration of cortisone is rejected if for no reason other than that there is no evidence to support the assertions made.
I have attempted to summarise the evidence as recorded by Dr Tai, which is the subject of attack by the worker. It may be clear that I have concluded that the notes compiled by that practitioner afford the Commission a most valuable evidentiary source upon which confident reliance could be placed when the factual allegations and medical issues are addressed. I reject the submission that any error has been demonstrated by the Arbitrator’s reliance upon the content of Dr Tai’s clinical notes when addressing the question of any causal relationship between the subject injury and the aggravation, acceleration or exacerbation of his undoubted condition of basilar invagination.
The second ground upon which reliance is placed by the worker appears to be an assertion of factual error on the part of the Arbitrator in “placing insufficient weight on the opinion of (the worker’s) treating specialist, Dr Charles Teo.” There are eleven separate reports in evidence before the Commission authored by Dr Teo. Most of those were addressed to the worker’s general practitioner, Dr Tai. The reasoning of the Arbitrator which is the subject of complaint has been summarised at [38] above. Before dealing with those complaints made on behalf of the worker, it is convenient to examine the evidence of Dr Teo, in particular, those matters recorded in his reports concerning relevant history and his opinion as expressed as to causation of any aggravation of the condition of basilar invagination.
The first of the reports in evidence was addressed to Dr Tai and dated 17 June 2003. Dr Teo recorded the fall in the course of the worker’s employment “last year” and a history that he “sustained immediate shoulder and neck pain.” I note that there was no history recorded on that occasion of immediate dizziness or that such dizziness persisted thereafter. It was noted that the shoulder and neck pain “has persisted, but not necessarily worsened, since then.” There is no mention in that report of the incident during hydrotherapy in April 2003, as recorded by Ms Cush and Dr Tai.
In the report dated 20 April 2004 to the worker’s solicitor referred to at [28] above, Dr Teo dealt with a number of matters which had apparently been raised by the solicitor. Of significance that report contains, following a statement of diagnosis and the description of the condition of basilar invagination, the following statement by Dr Teo – “However, what I can say quite definitively that his symptoms did not start until the accident on 30 July 2003, and I am sure that this exacerbated a pre-existing condition. My point is that Mr Tramontini probably had this condition for many years and certainly well before this injury on 30 July 2003, but that the injury gave him further inflammation and compression at the skull base level, thereby causing a decompensation of a previously well compensated disease”.
It appears that the worker’s solicitor wrote to Dr Teo for a clarification of the matters which I have quoted above. By letter dated 28 June 2005 referred to at [29] above addressed to the solicitors, Dr Teo stated that he had been mistaken in his earlier report and that the extract “should read”:
“……however, what I can say quite definitely that his symptoms did start prior to the accident on 30 July 2003, and I am sure that this exacerbated a pre-existing condition. My point is that Mr Tramontini probably had this condition for many years and certainly well before this injury on 30 July 2003…..”.
It seems that the worker’s solicitors again wrote to Dr Teo concerning matters of history and that Dr Teo replied by letter dated 6 August 2008 which is referred to at [30] above. Dr Teo there stated:
“The history that I have obtained from Mr Tramontini is that his basilar invagination symptoms commenced after the fall he sustained at his work on 7 June, 2002. I note that I first saw Mr Tramontini on 17 June, 2003 and he was symptomatic at the time. It was my view at the time, and still is, that the fall at work on 7 June, 2002 aggravated and made symptomatic his condition of basilar invagination.”
The extracts from reports which I have set forth above demonstrate that Dr Teo had confused the relevance of the motor vehicle accident which occurred in July 2003 with that of the fall which occurred in June 2002. This confusion was accepted by the worker and, as emphasised during submissions before the Arbitrator, that matter was “overcome” following efforts on the part of the worker’s solicitors to clarify matters with Dr Teo. There can be no doubt that the symptoms relating to basilar invagination had commenced prior to the motor vehicle accident and indeed, as the record demonstrates, Dr Teo was consulted by the worker before the occurrence of that collision. Notwithstanding the clarification of these matters, the Arbitrator rejected Dr Teo’s opinion that the subject fall “aggravated and made symptomatic his condition of basilar invagination.” That conclusion, in my view, was open to the Arbitrator on the evidence and is one with which I respectfully agree.
The task before the Arbitrator concerned the question as to whether, as a consequence of the subject fall, the worker’s pre-existing condition of basilar invagination had been aggravated, accelerated or exacerbated. That question concerns the Appellant’s liability in respect of alleged permanent impairment, and is one which must be determined by the Commission before referral by the Registrar for an assessment: section 321(4)(a) of the 1998 Act. The present matter has become somewhat complicated given the history of the proceedings. The referral for assessment to Dr Maxwell which occurred as a matter of course in 2005 occurred before the passage by Parliament of the last mentioned provision. Section 321(4) commenced operation on 1 November 2006. In these circumstances, the Commission was confronted by those findings of Dr Maxwell which have been made without there being any determination as to liability concerning the alleged neck injury and associated station and gait problems. It is clear on the medical evidence that the worker’s problems with station and gait as well as alleged neck pain giving rise to whole person impairment were a consequence of the alleged aggravation of the pre-existing condition of basilar invagination. The Arbitrator’s finding that there is no causal nexus between the fall and aggravation of that pre-existing disease had the consequence that there was then no requirement to refer for assessment the question of any whole person impairment arising by reason of the state of the cervical spine and the problems encountered by the worker with respect to station and gait. I note that on separate occasions, the Arbitrator raised with the parties the question as to what the appropriate approach was concerning the remitter to the Registrar for the purpose of referral to a MAC. It must be said that neither party addressed the issue with any precision, and it appears that an assumption was made that the parties consented to a particular form of remitter for the purpose of referral. This matter is addressed below.
The worker challenges the Arbitrator’s reliance upon Dr Tai’s notes concerning relevant history when evaluating the evidence of Dr Teo. I have earlier expressed my views as to the evidentiary weight of the general practitioner’s notes and I reject the Appellant’s argument concerning the Arbitrator’s reliance upon that material when rejecting the opinion of Dr Teo. It must be noted that, whilst Dr Teo at his first consultation in June 2003 recorded a history of dizziness, there is nothing in that first report to suggest that the worker gave a history that the dizziness had occurred on and persisted since the day of the fall.
It is clear from the totality of the evidence that the worker suffered some dizziness at the time of his fall. It is also clear that a period of months passed before any record concerning the worker’s experience of dizziness was made. That is to be found in the general practitioner’s notes. There is no report to the general practitioner on the day of the fall of neck pain or discomfort. The Worker’s Compensation Claim form completed on 19 June 2002 and signed by the worker made no reference to any neck injury, nor was any mention made in that form of any persisting dizziness. The statement made by the worker in 2005 upon which he relies made no reference to an injury to the neck. It is significant, in my view, that the subject of dizziness was addressed in that statement at paragraph 5 where it was stated that the worker had physiotherapy for 4 to 6 months following the injury, which treatment was followed by hydrotherapy for a period of 4 months. The worker stated that the hydrotherapy was cancelled “due to dizziness”. That statement, whilst somewhat ambiguous, tends to confirm the history of onset of dizziness as appears in the letter from Ms Cush to Dr Tai.
It is clear from the reports of Dr Teo that neck pain, dizziness and problems with station and gait are matters referable to the disease of basilar invagination. Having regard to the totality of the evidence, the onset of those symptoms occurred, as found by the Arbitrator, on the probabilities many months after the subject fall. The statement made by Dr Tai concerning a possible nexus between the fall and aggravation of his underlying condition must be assessed in the context of his evidence as a whole. I do not find that statement persuasive as to the issue of causation. In the circumstances, as earlier stated, the Arbitrator was correct to conclude that the evidence was not sufficient to establish a causal nexus between the subject fall and the onset of those symptoms. In the circumstances, the appeal must fail.
Notwithstanding my view concerning the correctness of the Arbitrator’s determinations of fact, it is apparent that the terms of paragraph (2) of the Certificate of Determination dated 17 November 2009 require correction. The finding that the disease had not been aggravated by the subject fall is a finding with respect to liability concerning alleged injury to the cervical spine and difficulties concerning station and gait. In those circumstances, there should not have been a referral of “cervical spine” for assessment. The determination is not, in its terms, clear as to the need for an assessment to be made as to the existence of further permanent impairment since the date of Dr Maxwell’s MAC. In those circumstances it is appropriate that the order as stated in paragraph (2) of that certificate be revoked and substituted with the determination as appears hereunder.
The Arbitrator has made two distinct findings in the course of his Reasons. At [5.21] he has expressly found that the subject fall had not aggravated or exacerbated the disease, and at [5.23] has found that “the fall did not play a part in either causing or aggravating the condition”. Those findings are sufficient with respect to a resolution of the dispute between the parties and it is not necessary and, in my view, not appropriate to enter an award in favour of the Appellant with respect to that allegation. Such award appears in paragraph (1) of the Certificate of Determination. That order, in the interest of simplicity, may stand. However it must be understood that findings concerning the dispute resolve the issue conclusively and bind the parties.
DECISION
Paragraphs (1), (3) and (4) of the Certificate of Determination dated 17 November 2009 are confirmed.
Paragraph (2) of the Certificate of Determination dated 17 November 2009 is revoked and the following order is made in its place:
“2. That the dispute concerning further whole person impairment with respect to the applicant’s lumbar spine and right upper extremity since the issue of Dr David Maxwell’s Medical Assessment Certificate dated 4 November 2005 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The date of injury is 7 June 2002 and the assessment is to be undertaken under the whole person impairment regime.”
COST
No order as to costs of this appeal.
Kevin O’Grady
Deputy President
25 March 2010
I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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