Tremlett v Hays Specialist Recruitment (Australia) Pty Ltd
[2022] NSWPIC 525
•23 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Tremlett v Hays Specialist Recruitment (Australia) Pty Ltd [2022] NSWPIC 525 |
| APPLICANT: | Joel Ben Tremlett |
| RESPONDENT: | Hays Specialist Recruitment (Australia) Pty Ltd |
| Member: | Jacqueline Snell |
| DATE OF DECISION: | 23 September 2022 |
| CATCHWORDS: | WORKERS COMPENSATION -The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 for injury sustained to his cervical spine (and scarring), injury sustained to his nervous system (brain injury) and consequential conditions in his lumbar spine and urinary system; the parties agree the applicant sustained 30% whole person impairment resulting from injury sustained to his cervical spine (and scarring) in the course of his employment with the respondent but the respondent disputes the applicant sustained injury to his nervous system (brain injury) in the course of his employment with the respondent and consequential condition in his lumbar spine and urinary system; Held – the applicant sustained injury to his nervous system (brain injury) in the course of his employment with the respondent with his employment being a substantial contributing factor to injury; the applicant sustained consequential condition in his urinary system; award for the respondent in respect of allegation of consequential condition in the lumbar spine; the applicant’s claim for permanent impairment compensation resulting from injury to his nervous system (brain injury) on 24 November 2011 in the course of his employment with the respondent and consequential condition in his urinary system is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. |
| determinations made: | 1. The applicant sustained injury to his nervous system (brain injury) on 24 November 2011 in the course of his employment with the respondent. The applicant’s employment with the respondent is a substantial contributing factor to injury. 2. The applicant sustained consequential condition to his urinary system. 3. Award for the respondent in respect of allegation of consequential condition to the lumbar spine. 4. The applicant’s claim for permanent impairment compensation resulting from injury sustained on 24 November 2011 to his nervous system (brain injury) and consequential condition to his urinary system is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from that injury and consequential condition. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons are: a. Application to Resolve a Dispute and attached documents, and b. Reply and attached documents. |
| THE COMMISSION NOTES: | 5. It is not disputed the applicant sustained 30% whole person impairment resulting from injury sustained to his cervical spine (and surgical scarring) on 24 November 2011 in the course of his employment with the respondent. |
STATEMENT OF REASONS
Background
At the time Joel Ben Tremlett (Mr Tremlett) allegedly sustained injury the subject of these proceedings, he was employed by the respondent, Hays Specialist Recruitment (Australia) Pty Ltd (Hays) and working as casual labourer at a job located in the Pitt Street Mall, Sydney. Mr Tremlett is currently 39 years of age.
Mr Tremlett alleges he sustained injury to his cervical spine (and surgical scarring) and nervous system (brain injury) on 24 November 2011 in the course of his employment with Hays. Mr Tremlett also alleges he suffers consequential conditions to his lumbar spine and urinary system.
Mr Tremlett claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) resulting from injury to his cervical spine, scarring, nervous system (brain injury) and consequential conditions to his lumbar spine and urinary system.
Mr Tremlett’s claim for permanent impairment has been declined, and while the parties agree Mr Tremlett has an entitlement to permanent impairment compensation payable under s 66 of the 1987 Act for 30% whole person impairment (WPI) resulting from the injury he sustained to his cervical spine (and surgical scarring) on 24 November 2011 in the course of his employment with Hays, Hays disputes Mr Tremlett has sustained injury to his nervous system (brain injury) and consequential conditions to his lumbar spine and urinary system.
Issues for determination
The parties agree that the following issues remain in dispute:
(a) whether Mr Tremlett sustained injury to his nervous system (brain injury) in the course of his employment on 24 November 2011, with his employment being a substantial contributing factor to injury;
(b) whether Mr Tremlett suffers consequential condition to his lumbar spine;
(c) whether Mr Tremlett suffers consequential condition to his urinary system, and
(d) the total level of percentage permanent impairment Mr Tremlett has sustained as result of the injury and consequential conditions (if any) sustained on 24 November 2011 in the course of his employment with Hays.
Procedure before the Personal Injury Commission (the Commission)
Mr Tremlett’s claim for permanent impairment compensation came before me for preliminary conference on 11 August 2020. Mr Groves appeared on behalf of Mr Tremlett and
Mr Tremlett was present. Mr Lee appeared on behalf of Hays.With Mr Tremlett’s claim unresolved at the preliminary conference, Mr Tremlett’s claim came before me for conciliation/arbitration hearing on 26 August 2020. Mr Perry of counsel appeared for Mr Tremlett instructed by Mr Groves. Mr Tremlett was present. Mr Stockley of counsel appeared for Hays, instructed by Mr Mitas. Ms Thorne of Mr Mitas’ office also attended.
Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Evidence
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
Findings and reasons
Brief review of evidence
Statement of Mr Tremlett
Mr Tremlett provided a statement dated 16 May 2019. He relevantly described the circumstances of injury occurring on 24 November 2011:
“… I was helping to unload a truck carrying building material. There were large pieces of wood and panels.
The truck was being unloaded by hand onto trolleys. There were about 8 men undertaking the job…
We had been unloading the truck for about an hour. There was an apprentice on top of the truck…
The apprentice walked a large piece of heavy timber towards the back of the truck to feed it off to the men waiting on the ground. The apprentice was unloading the timber to me, but I was already carrying another piece of timber. He released the timber he was carrying as if to pass it to me and it hit me in the head. I was wearing a hard hat but the angle of the timber hitting my head knocked the hard hat off and did not stop the impact.
I remember falling to the ground. I may have been unconscious, but I am not sure.
I remember trying to get up and not being able to get up I was helped into a sitting position with my back against a window. I remember I vomited and felt terribly nauseous and very dizzy”.
Mr Tremlett explained he was taken to Sydney Hospital but said he could not remember the details other than being treated in Casualty, being provided with a Workers Compensation Certificate in which he was certified unfit for work for a week or two and filling out a claim form. Mr Tremlett said he thought he may have undergone a CT scan. Mr Tremlett said of his initial attempt to return to work after a week or two:
“I got halfway to work and had blinding headache and felt nauseous and I couldn’t even drive.”
Mr Tremlett attended on his general medical practitioner, who at the time was Dr Cole, and was certified totally unfit for work. With Dr Cole somewhat reluctant to become involved in
Mr Tremlett’s claim for workers compensation, Mr Tremlett came under the general medical care of Dr Cameron, with referral to Dr Al Khawaja and Dr Winder. Mr Tremlett came to two level spinal fusion of his cervical spine at C3/4 and C5/6 in December 2015 under the care of Dr Winder, with limited relief.When Mr Tremlett relocated to Wollongong he came under the general medical care of
Dr Baker and with Mr Tremlett reportedly suffering significant difficulty with memory and concentration Mr Tremlett was referred to Associate Professor Lah, neuropsychologist, for independent psychometric testing, which Mr Tremlett said “was extensive and lasted for hours and was directed at those problems that I had been having since my accident”. Relevant to “those problems” Mr Tremlett said:“Since the accident I have noticed that I have problems with my memory and my concentration. I seem to have anger discontrol and I have trouble word finding. I seem to have difficulty absorbing and retaining information or new information.”
In his statement, Mr Tremlett also relevantly said:
“I get pain radiating down to my lumbar spine.
I get pain going from my lumbar spine in my right buttock and down my right leg to my right foot.”
Treating medical evidence
Diagnostic imaging
MRI scan of the brain dated 3 July 2013, which is not before the Commission, reportedly demonstrated no intracranial lesion.
MRI scan of the cervical spine dated 10 September 2014[1] relevantly concluded right paracentral disc protrusion of the C5/6 level with impingement of the right C6 nerve root, right paracentral disc protrusion of the C4/5 level with impingement of the C4 nerve root, and early bilateral facet joint degenerative changes present at the C4/5 and C6/7 level.
Dr Cole
[1] ARD at page 121.
Mr Tremlett initially came under the general medical care of Dr Cole, and the WorkCover NSW Medical Certificates she issued on 24 February 2012[2] and 1 March 2012[3] are in evidence. Diagnosis is provided as “soft tissue injury head + neck”.
Dr Cameron
[2] ARD at page 102.
[3] ARD at page 103.
Mr Tremlett subsequently came under the general medical care of Dr Cameron, and in letters of referral dated 8 April 2013 to St Clair Physiotherapy[4] and dated 6 May 2013 to
Dr Al-Khawaja[5] Dr Cameron relevantly noted “November 2011 – hit on head with timber”.[4] ARD at page 76.
[5] ARD at page 77.
Dr Al Khawaja
Mr Tremlett came under the care of Dr Al Khawaja, neurosurgeon. A number of
Dr Al Khawaja’s reports[6] are in evidence. In his initial report dated 30 May 2013 Dr Al Khawaja described the circumstances of injury:“In November 2011 he was hit on the head by an extremely heavy piece of timber. He was knocked unconscious on the ground and suffered from concussion and neck pain.”
[6] ARD commencing at page 79.
In his letter dated 31 July 2013, Dr Al Khawaja said Mr Tremlett’s recent MRI brain scan was reported as normal. In his letter dated 16 October 2014, Dr Al Khawaja described
Mr Tremlett as wanting to undergo his recommended surgical treatment in the nature of C4/5 and C5/6 anterior cervical discectomy and fusion with Dr Al Khawaja seeking approval for the treatment.
Dr Winder
Mr Tremlett subsequently came under the care of Dr Winder, neurosurgeon and spine surgeon. A number of Dr Winder’s reports[7] are in evidence. In his initial report dated
7 September 2015 Dr Winder described the circumstances of injury:“I am told he was assisting in a shop fitting business where a joist was let go and landed on top of his right shoulder and neck. I am told he presented to St Vincent’s Hospital at the time having suffered some loss of consciousness and was managed conservatively. He developed some ongoing headache and ever since that time has developed severe neck pain, right sided arm pain and progressive dysfunction in the right arm.”
[7] ARD commencing at page 90.
Mr Tremlett came to C4/5 and C5/6 anterior cervical discectomy and fusion under the care of Dr Winder on 23 November 2015. On review on 28 April 2016 Dr Winder reported “there is a lot of psychosocial issues with Joel as we knew before” and recommended review by a pain specialist. While Dr Winder described the surgical treatment having “been performed without complication” he cautioned “I suspect he will require rehabilitation services for some time”.
Northern Private Pain Centre
Mr Tremlett came under the care of Dr O’Neill, pain specialist. Dr O’Neill’s reports dated
9 August 2016[8] and 23 November 2016[9] are in evidence. In her initial report Dr O’Neill said of Mr Tremlett:“He is indeed a complex young man with multiple problems developing since the onset of his pain some four years ago.”
[8] ARD at page 124.
[9] ARD at page 127.
Following clinical examination Dr O’Neill formed the impression Mr Tremlett was “now experiencing a complex set of problems following a workplace injury some four years ago to his head and cervical spine”. Dr O’Neill considered Mr Tremlett had become profoundly disabled since the accident and subsequent cervical spine fusion surgery. Dr O’Neill recommended an intensive multidisciplinary approach to his medical management.
Western Sydney Pain Centre
Mr Tremlett came under the care of Dr Deshpande, pain specialist. Dr Deshpande’s report dated 3 October 2017[10] is in evidence. Dr Deshpande described the circumstances of injury:
“Joel has sustained a work related injury in 2011. He was working at a construction site and a timber piece fell and landed on the right side of his neck.
He subsequently underwent surgical intervention and currently troubled with ongoing pain.”
[10] ARD at page 95.
Dr Deshpande accepted there was pain behaviour present throughout Mr Tremlett’s consultation with him and a multidisciplinary management plan was recommended.
Independent medical evidence
Dr Perla
Mr Tremlett was reviewed by Dr Perla on 17 April 2012 in his capacity as injury management consultant. Dr Perla provided a report dated the same day. Dr Perla noted the review was “in relation to his reported head and neck injury dating to the 24th November 2011”.
Dr Perla reported the circumstances of injury:
“On the 24th November 2011 Mr Tremlett stated he was at the Pitt Street Mall. A truck had pulled up and material was being removed from the truck. Apparently an apprentice was on the truck and was passing 6 metre long timber bearers to the workers below the truck. At one stage Mr Tremlett stated that the apprentice, as far as he knows, dropped one of the bearers and unfortunately struck him on the top of his head. He stated he fell to the ground. He was unsure of whether he lost consciousness. He recalls that he was assisted by a fellow worker. Soon after he vomited. He stated he thought he ‘blacked out’ for a few seconds. He has little memory of what happened.
He stated he was taken by fellow workers to a Sydney Hospital. He thought he may have had a CT Brain scan. After some hours he was discharged into to the care of his General Practitioner.
He was seen by Dr Margaret Cole. I note that she provided a diagnosis on the WorkCover Certificates as ‘soft tissue injury, head and neck’.”
Dr Perla relevantly concluded “as a result of the review”:
“Mr Tremlett more than likely did sustain concussion following the blunt head trauma.”
Dr Wallace
Mr Tremlett was orthopaedically assessed on 25 August 2013 by Dr Wallace in his capacity as independent medical examiner. Dr Wallace provided a report dated 30 August 2013[11].
Dr Wallace described the reason for the referral was “to assess liability and treatment in regard to the neck and head”.[11] ARD at page 27.
Dr Wallace reported the circumstances of injury:
“Whilst he was standing at ground level, facing away from the truck, a co-worker standing on the truck tray dropped a five meter timber beam and as Mr Tremlett stood up from a crouching position and turned around, he was stuck on the top of the head by the falling beam.
He fell to the ground but does not recall if he sustained loss of consciousness. He noted nausea and vomiting accompanied by headache and pain at neck radiating to his right arm.
He reported the incident to his employer and walked to nearby Sydney Hospital where he remained under observation for six hours. He was prescribed analgesic medication before being sent home.
The following day, he was reviewed by his Local Medical Officer, Dr Cole in St Clair, complaining of ongoing headache and cervical spinal pain.”
Dr Wallace provided diagnosis, which included closed head injury.
Dr Deveridge
Mr Tremlett was assessed on 17 December 2013 by Dr Deveridge in his capacity as independent medical assessor. Dr Deveridge is a general surgeon. Dr Deveridge provided reports dated 20 December 2013 (2)[12] and 24 February 2014[13].
[12] ARD at page 128.
[13] ARD at page 133.
Dr Deveridge reported the circumstances of injury:
“Whilst assisting to unload a truck carrying heavy timber bearers. Your client was standing on the ground, receiving the load from the back of the truck and placing it on a trolley, for delivery to a city premises. Your client states that there was an apprentice passing down the heavy timber items, your client would reach up to take the load partly with his arms and partly on his shoulder and then twist to place it on the trolley. After placing one item he was twisting his body back to receive the next one. The apprentice on the truck was apparently not paying attention to his job, and the heavy piece of timber dropped onto the right side and back of your client’s head and then his right shoulder. He was knocked out and thrown to the ground. He believes that he had lost consciousness for a brief period. He was then nauseated and vomiting. He had a stiff painful neck and headache.
He was taken by car to nearby Sydney Hospital. He believes a scan was carried out and he was kept under observation and later released.”
Dr Deveridge relevantly provided opinion Mr Tremlett “sustained a significant blow to the back of his head, neck and right shoulder girdle, in the subject work injury” and “suffered a mild concussive head injury, which may still be contributing to post traumatic headache”.
Following review of Dr Wallace’s report referred, Dr Deveridge noted “like myself”
Dr Wallace’s conclusion included Mr Tremlett had sustained an injury to his head “when he was struck by a heavy falling timber beam”.
Dr Peter Bentivoglio
Mr Tremlett was assessed on 2 July 2018 by Dr Bentivoglio in his capacity as independent medical examiner. Dr Bentivoglio is a neurosurgeon. Dr Bentivoglio provided a report dated 18 July 2018[14].
[14] ARD at page 135.
Dr Bentivoglio reported the circumstances of injury:
“… he told me about the work injury on 24/11/2011 when he had a heavy timber on his right shoulder. The other person carrying the timber dropped it onto his right shoulder and hit his neck. He was knocked out. He was taken to hospital. He has no recollection of his hospital stay. He says his memory was poor after the injury, but he has had no prior neck injuries to this accident. He had some definite post-concussion effects with memory problems, headaches, dizziness, confusion and poor concentration.”
Relevant to Mr Tremlett’s cervical spine injury, Dr Bentivoglio provided diagnosis in terms of “discogenic neck pain with right brachialgia and C5 and C6 nerve root compression”.
Dr Bentivoglio’s description of Mr Tremlett’s current status included:
“He still has poor short term memory. His dizziness persists. He has poor concentration. He feels anxiety and stress levels are high. He can drive himself. He has poor social skills. He needs to have traffic navigation apps for guidance when he drives.”
Dr Bentivoglio’s diagnosis included “some persistent cognitive post-concussion effects even though his MRI scan was normal” and in response to specific questioning as to the permanent impairment sustained by Mr Tremlett resulting from injury/condition sustained by Mr Tremlett consequent on the incident occurring on 24 November 2011, Dr Bentivoglio relevantly said:
“The fact that I still feel that he is suffering some cognitive impairment from the concussive injury he had to head using Table 13.5, page 320 assessing the clinical dementia ratings, his memory is impaired and is questionable and I classify that as .5. He is orientated in time and he can undertake community affairs even though his social activities are a little bit decreased. Home and hobbies are normal. Personal care is normal.
Taking into account his memory which is .5, his criteria for his mental status is class 1 and I would give him 10% impairment for his whole person impairment with a clinical dementia rating of .5.
When I combine his post concussive effects and his injury to his cervical spine, he is a 37% whole person impairment.”
Associate Professor Lah
Mr Tremlett attended on A/Prof Lah for independent neuropsychological examination on
19 October 2018. A/Prof Lah provided a report dated 10 November 2018[15]. A/Prof Lah reported the circumstances of injury:“He was hit by a very heavy wooden beam that was dropped from a 6 meters height. He reported fragmented memories of events that happened before the accident. His last memory was of warning ‘a kid’ who subsequently dropped the beam not to be silly. He lost consciousness on impact. He told me he remembered bits and pieces of what happened after the impact at the scene. He was told that he came around screaming and fighting. He reported fragmented memories of examinations undertaken at a hospital. He told me that he was discharged the following day but did not know how he got home from the hospital.
He recalled feeling unwell in the days to follow. He had difficulty sitting up, as he felt nauseous when attempting to sit up. Getting from the bed to toilet was a problem, and he reported that he woke up on the floor a few times, possibly after fainting. He reported that after some 2 to 3 weeks, as concussion wore off he realised that he could not move his neck. He was taking pain medication. As he continued to feel unwell he went to see his General Practitioner in mid-December.”
[15] ARD at page 38.
Following review of the medical information provided to him (which included a copy of
Dr Bentivoglio’s report dated 18 July 2018), interview and examination, A/ Prof Lah provided opinion:“Overall, based on history (loss of consciousness after impact and fragmented memories of events that took place following the impact, but normal brain MRI)
Mr Tremlett was likely to have sustained a mild traumatic brain injury in the accident that happened at work. In most cases mild traumatic brain injuries result in transient neuropsychological difficulties that resolve over ensuing weeks to months. Some mild, residual difficulties may persist in rare cases. The current neuropsychological assessment shows significant impairments in several areas of cognition and marked difficulties with mood and behavioural regulation. The assessment is also indicative of incomplete effort. Findings on the current neuropsychological assessment are at odds with the gravity of his head injury and unlikely to be representative of his underlying abilities.”Of note is that A/Prof Lah described Mr Tremlett’s mood having changed during his interview with him. He said of Mr Tremlett:
“He became quite tense and somewhat agitated when describing difficulties he has faced following the accident at work. He impressed as being distressed by residual impairments and associated functional disabilities.”
Dr New
Mr Tremlett was assessed on 26 August 2019 by Dr New in his capacity as independent medical examiner. Dr New is an orthopaedic surgeon. Dr New provided a report dated
27 August 2019[16].[16] ARD at page 140.
Dr New reported the circumstances of injury:
“He alleges that on 24th November 2011 in the course of his normal duties he was working in the Pitt Street Mall, assisting with unloading of a truck carrying building material. As he did so a large piece of wood dropped from the back of the truck and struck him in the head and neck.
He stated that he was wearing a hard hat at the time but the angle of the timber knocked his hat off and knocked him to the ground.
He was dazed and momentarily unconscious by his account. He has no recollection of being taken to Sydney Hospital but he was attended there in Casualty. He has very little recollection of how long he was at the hospital. He says he stayed overnight.”
Noting Mr Tremlett had no prior head problems, back pain or leg pain, Dr New relevantly reported of Mr Tremlett’s complaints at assessment:
“He also states that he now has quite debilitating back pain which has developed into his right buttock and his right foot.
He states that his back and leg pain only developed after his surgery.
…
He had ongoing problems with memory and concentration and in November 2018 he was referred to Dr Sunny Lah, a Neuropsychologist, who performed psychometric testing. He has also been seen by a consultant neurologist.”
Dr New also relevantly provided pain disability assessment and clinical examination of the lumbar spine:
“He has chronic low back pain and pain down his right leg in the L5 and S1 nerve root distribution. He describes the pain as an aching burning sensation with pins and needles which is constantly debilitating.
…
He has a protected sitting and standing attitude and an antalgic gait favouring the right hand side, decreased lumbar lordosis, markedly reduced lumbar spinal movement and disruption of his normal lumbar pelvic rhythm. He has a delayed positive Trendelenburg sign and has hypoaesthesia in the L5 and S1 nerve root distribution. He has an absent ankle jerk and negative clonus.”
In noting Mr Tremlett’s back and leg pain “became predominant” after his surgical treatment under the care of Dr Winder, Dr New provided diagnosis that included “significant low back pain and radicular pain in the L5 and S1 nerve root distribution” and assessment of 10% WPI resulting from injury to the lumbar spine.
Dr Teychenne
Mr Tremlett has been assessed by Dr Teychenne in his capacity as independent medical examiner. Dr Teychenne is a neurologist. Dr Teychenne provided a number of reports, which are dated 10 September 2019[17], 17 September 2019[18], 6 January 2020 (2)[19] and
24 January 2020[20].[17] ARD at page 146.
[18] ARD at page 151.
[19] ARD at page 154.
[20] ARD at page 171.
Dr Teychenne reported the circumstances of injury:
“He stated he was helping unload and was kneeling down when a worker dropped a piece of timber. The timber weighed about 80kgs. It basically struck Mr Tremlett from behind striking him over the right suprascapular region over the right side of the neck. He had a compression injury to the C5 disc which was apparently touching the spinal cord…
He stated that his last memory was of 20 minutes before the accident. He was amnesic for the actual injury. He stated that his last memory was of carrying a piece of timber. His next memory was of waking up in hospital. He stated that he did not recall how he got home.”
Dr Teychenne said Mr Tremlett said he suffered concussion as well as cervical spine injury in the accident.
Dr Teychenne also reported historical sequelae provided to him by Mr Tremlett which included chronic headache and nausea for a period of time after the accident, and vertigo, blurred vision, headache and nausea following his cervical spine surgical treatment. Dr Teychenne provided comment that nausea, vomiting, dizziness and headaches are symptoms quite consistent with both cervical spine cord injury and concussive head injury.
Dr Teychenne also said of Mr Tremlett:
“He stated that 4 months after the surgery he noted bowel urgency but he generally managed to make it on time. He also noted at the same time urinary urgency. He had at times lost control of urine. That is urinary incontinence up to half a cup. He stated the urinary urgency would come on quite rapidly.
…
As a result of the probable head injury he stated that he noted a marked memory deficit. He had an acute memory deficit for 3 months which was quite severe but he still noted a memory deficit subsequent to that.”
Dr Teychenne noted that due to ongoing problems with memory and concentration,
Mr Tremlett underwent psychometric testing with A/Prof Lah. Dr Teychenne also reported of Mr Tremlett:“On testing recent memory he immediately recalled 3/3 objects and 4/5 numbers. After 3 minutes he recalled 1/3 objects and 3/5 numbers. After 20 minutes he recalled 1/3 objects and 2/5 numbers. He was able to draw a clock and put in an approximate time. He stated that he had become extremely irritable and angry since the injury.”
Following clinical examination and review and comment on the plethora of medical information made available to him, which included A/Prof Lah’s testing scores, Dr Teychenne concluded Mr Tremlett’s psychometric testing scores “should be accepted as a valid indication of his cognitive deficits and should be accepted as indicative of a mild traumatic brain injury”. He said:
“I have indicated the history of Mr Tremlett’s health prior to his injury on the 24th November 2011. I have indicated the history I received regarding the accident that he sustained and the injuries that he sustained as a result of that accident on the 24th November 2011. I have indicated my findings on examination. My diagnosis was:
An incomplete cervical cord lesion with, based on the enclosed reports, a right cervical radiculopathy.
A moderate traumatic brain injury with cognitive deficits.
I considered that Mr Tremlett did sustain a traumatic brain injury and that he had cognitive problems directly due to his traumatic brain injury. The traumatic brain injury occurred as a result of the accident on 24th November 2011.”
Dr Teychenne assessed Mr Tremlett with 20% WPI resulting from injury sustained to his nervous system (brain injury). Dr Teychenne also assessed Mr Tremlett with 7% WPI resulting from the alleged consequential condition he has sustained to his urinary system, with explanation “Mr Tremlett’s urinary problem is specifically due to spinal cord damage”.
Dr Millons
Mr Tremlett was assessed on 26 August 2020 by Dr Millons in his capacity as independent medical examiner. Dr Millons is a general surgeon. Dr Millons provided two reports dated
31 August 2020[21].[21] ARD at page 45.
Dr Millons reported the circumstances of injury:
“It appears that he was in the Mall. Some load-bearing timbers, some 6 m long, were being unloaded from a truck by an apprentice. They were being slid backwards. He would put the load-bearer on his shoulder and walk backwards, jiggling the timber into an area of balance. He would then move away, turn around and squat down to load the bearer onto a trolley.
He had done that and was still squatting down on the trolley. As he went to get up, it appears he was struck by another beam that had been unloaded prematurely. He was struck on the right side of his head and neck. He was wearing a hard hat but the timber apparently hit him underneath the hard hat. He was knocked to the ground.
Mr Tremlett has no recall of what happened after that.
It appears that he turned up at Sydney Hospital. He has no idea how he got there. He was retained overnight. He has no recall of being there. Some brain scans were performed. He is not sure how he got home from hospital and he has no recall of the next few weeks.”
On review of the quite extensive medical information made available to him, which included the report of Dr Teychenne dated 6 October 2020 in which Dr Teychenne provided diagnosis of incomplete cervical cord lesion with right cervical radiculopathy and moderate traumatic brain injury with cognitive defects, while Dr Millons accepted he was not competent to comment on the cervical cord lesion of the traumatic brain injury he noted “they do appear to be playing something of a central role”.
Dr Millons relevantly noted that Mr Tremlett’s back pain developed after his cervical spine surgical treatment in November 2015, but said:
“It may be that there is some degenerate change in the lumbar region, being aggravated on a daily basis by the normal activities of daily living.
The back complaint does not appear to me to relate to the subject incident of 24 November 2011 but is something that came on spontaneously.”
Dr Wines
Mr Tremlett was assessed on 27 August 2020 by Dr Wines in his capacity as independent medical examiner. Dr Wines is a urologist. Dr Wines provided a report dated
1 September 2020[22].[22] ARD at page 60.
Dr Wines reported the circumstances of injury:
“It is alleged that he was hit in the head by a heavy timber bearing and was knocked out! He was transferred to hospital (Sydney Hospital). He apparently had some form of scan but was unable to provide me with any details about his length of stay or whether he was in fact admitted.
Following this incident, he said he suffered from “concussion”, nausea, loss of balance and reduced appetite. He alleges his GP provided him with minimal guidance and referred for physiotherapy.”
Dr Wines noted Mr Tremlett came to “a ‘double’ cervical fusion at the C3-4 and C5-6 levels” under the care of Dr Winder and reported Mr Tremlett was not catheterised. He said of
Mr Tremlett:“He now alleges daytime frequency x 10 but no significant nocturia. He alleges hesitancy at times of 10 to 15 minutes before being able to void. There is sometimes a small volume post micturition dribble.”
Following clinical examination Dr Wines provided opinion:
“This man’s presentation is unusual. It would appear that he has some significant clinical cervical signs, but it is not clear if they are relevant to this alleged urinary symptoms. He describes an abnormal pattern of micturition and in view of this and his absent bulbocavernosus reflex he should undergo an ultrasound of his urinary tract and video urodynamic studies to exclude any significant abnormalities of innervation of the lower urinary tract.
He also should have pituitary studies performed to exclude deficiency after his head injury. However, I will be surprised if any significant abnormality is found. I suspect there is considerable psychiatric overlay behind his presentation.”
Relevant to Dr Teychenne’s opinion and assessment of permanent impairment resulting from Mr Tremlett’s urinary system, Dr Wines said:
“I don’t think is appropriate for a neurologist to comment on urological matters particularly in the absence of video-urodynamic investigations having been carried out. It is appropriate for him to comment on neurological conditions which MAY result in urinary symptoms.”
There is no further reporting from Dr Wines in evidence.
Dr Mellick
Mr Tremlett was assessed on 25 August 2020 by Dr Mellick in his capacity as independent medical examiner. Dr Mellick is a neurologist. Dr Mellick provided two reports dated
28 September 2020[23].[23] ARD at page 66.
Dr Mellick reported the circumstances of injury:
“He said he had no recollection of exactly what happened but was informed that he was assisting another worker to unload lengths of timber from the tray of the ruck. One worker was therefore on the tray, feeding the timber to him and he was standing on the ground receiving it, and placing it on his shoulder. His task was to receive the timber and then bend and place it on the ground. It would seem that the injury occurred when he was kneeling, not having yet adequately adjusted the timber that he had just placed on the ground. The other worker had not noticed that Mr Tremlett was not standing and not ready to receive the next piece of timber and continued to feed it off the tray of the truck, the timber toppled and struck Mr Tremlett on the head and right shoulder.
He has no recollection of these events, but said that he can recall waking in Sydney Hospital with severe pain in the neck and the right side of his head. He cannot recall for certain how long he remained in hospital but believes it might have been overnight or might have been for two days. He was discharged from hospital with persisting pain and did not resume work.”
Following clinical examination and review of the medical information made available to him (which was not inconsiderable) other than the injury Mr Tremlett sustained to his cervical spine on 24 November 2011 and assessment of permanent impairment resulting from that injury, Dr Mellick said “there is no consistent understandable evidence of an organic disorder caused by the injury in 2011” and confirmed he found “no assessable lumbar spine injury”. He also confirmed:
“I have considered the information sent to me and the examination I have conducted and do not establish evidence of an intracranial, brain injury or an injury to the spinal cord or peripheral nervous system.”
Submissions
Mr Stockley and Mr Perry made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this particular matter. A recording of counsel’s submissions is available to the parties.
Determination
Hays disputes Mr Tremlett sustained brain injury in the incident occurring on
24 November 2011. Hays also disputes Mr Tremlett sustained consequential conditions to his lumbar spine and urinary system. Mr Tremlett has the onus of proving he sustained brain injury on 24 November 2011 and/or consequential conditions to his lumbar spine and urinary system.This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[24] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[24] [2008] NSWCA 246 (Nguyen).
Injury
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment and s 9A of the 1987 Act relevantly provides no compensation is payable under the Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Roche DP considered the meaning of “personal injury” in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[25] observing:
“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 Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; CLR 286 at [39]). In other words, as stated in [81] it is ‘a sudden identifiable pathological change’”.
[25] [2014] NSWWCCPD 47.
Relevant to this issue of causation of the injury in Kooragang v Cement Pty Ltd v Bates[26] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[26] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463].
In his statement Mr Tremlett said he was hit on the head in the incident. He said he may have become unconscious. He said he felt nauseas and dizzy and that he vomited.
Mr Tremlett recalled little of the time he spent at the hospital after the accident. Mr Tremlett said that after the incident he continued to experience nausea and headache, and with reported difficulty with memory and concentration he underwent psychometric testing, which he described as extensive. Mr Tremlett’s initial treating general medical practitioner, Dr Cole, issued Mr Tremlett with WorkCover NSW Certificates of Capacity in early 2012 in which she provided diagnosis which included injury to Mr Tremlett’s head. Also in early 2012 Dr Perla took a history of Mr Tremlett having been hit on the head in the incident and relevantly concluded as a result of his review of Mr Tremlett at that time that Mr Tremlett “more than likely did sustain concussion following the blunt head trauma”.In his letters of referral in early 2013 Mr Tremlett’s subsequent treating general practitioner, Dr Cameron, referred to Mr Tremlett being hit on the head in the incident. In his report dated 30 May 2013, Dr Al Khawaja reported Mr Tremlett as having been hit on the head in the incident, knocked unconscious and suffering concussion Dr Al Khawaja referred Mr Tremlett for MRI brain scan which was reportedly normal. In his report dated 30 August 2013
Dr Wallace provided diagnosis following his assessment of Mr Tremlett a few days earlier which included closed head injury. Following his assessment of Mr Tremlett in December 2013 Dr Deveridge likewise concluded Mr Tremlett had sustained head injury in the incident.In mid-2018 Dr Bentivoglio noted Mr Tremlett continued to experience dizziness and experienced problems with memory and concentration. Dr Bentivoglio provided diagnosis that included cognitive impairment from a concussive injury sustained in the incident. Towards the end of that same year, Mr Tremlett undertook neuropsychological testing with A/Prof Lah, who provided opinion Mr Tremlett was likely to have sustained a mild traumatic brain injury in the incident, albeit he appeared somewhat hesitant to accept the neuropsychological testing results were a true reflection of Mr Tremlett’s abilities.
Towards the end of 2019 Dr Teychenne accepted Mr Tremlett suffered concussion in the incident. Dr Teychenne provided comment Mr Tremlett’s symptoms of nausea, vomiting and headaches were consistent with a concussive head injury and provided diagnosis which included moderate traumatic brain injury with cognitive defects.
While Mr Tremlett was assessed by Dr Mellick in August 2020 with Dr Mellick providing opinion following his clinical examination of Mr Tremlett and review of the considerable medical information made available to him that he could not establish evidence of brain injury, Dr Mellick’s opinion does not accord with those provided by Dr Teychenne,
A/Prof Lah and Dr Bentivoglio, all of who accept Mr Tremlett sustained brain injury in the incident, and I prefer the multidiscipline opinions provided by these independent medical examiners to that provided by Dr Mellick.I am of the view Mr Tremlett provided a credible history of sustaining an injury to his head in the incident occurring on 24 November 2011. Mr Tremlett has the support of Dr Teychenne, Dr Bentivoglio and A/Prof Lah (albeit cautioned) that he sustained brain injury in the incident occurring on 24 November 2011 and I prefer their opinions over that of Dr Mellick in that such support is multidisciplined, having been provided by a neurologist, a neuropsychologist and a neurosurgeon.
Although none of the doctors in this matter has used the terminology “substantial contributing factor” I do not consider this to be fatal to Mr Tremlett’s claim as I am of the view that consideration of the evidence overall demonstrates Mr Tremlett’s employment with Hays was a substantial contributing factor to the brain injury he has sustained.
Following a review of the evidence as a whole and careful consideration of the submissions made by both counsel I accept Mr Tremlett has discharged the onus of proof required of him and I am satisfied on the balance of probability that Mr Tremlett sustained brain injury on
24 November 2011 in the course of his employment with Hays and that his employment with Hays was a substantial contributing factor to that injury.
Consequential condition
With allegation by Mr Tremlett that he has sustained consequential conditions to his lumbar spine and urinary system resulting from injury sustained to his cervical spine on
24 November 2011 I am mindful of Deputy President Snell’s discussion in Trustees of the Roman Catholic Church of the Dioceses of Paramatta v Brennan[27]:“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon V Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCP 8. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.”
[27] [2016] NSWWCCPD23.
It is important to recognise too that the injury Mr Tremlett sustained on 24 November 2011 in the course of his employment may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential condition to his lumbar spine and/or urinary system.
Consequential condition to the lumbar spine
In his statement Mr Tremlett made current complaint of pain radiating down to his lumbar spine, into his right buttock, leg and foot, which he felt had been caused by the incident occurring on 24 November 2011.
Mr Tremlett told Dr New at assessment on 26 August 2019 that his back and leg pain had developed after he came to surgical treatment on 23 November 2015 under the care of
Dr Winder. While Dr New noted Mr Tremlett’s back and leg pain “became predominant” after his surgical treatment and provided diagnosis that included “significant low back pain and radicular pain in the L5 and S1 nerve root distribution” and assessment of permanent impairment resulting from the injury, Dr New provided no explanation as to any causal connection between the condition he considers Mr Tremlett suffers in his lumbar spine and the injury Mr Tremlett sustained on 24 November 2011.Dr Mellick reported following his assessment of Mr Tremlett on 25 August 2020 that he found “no assessable lumbar spine injury”.
While Dr Millons noted at assessment on 26 August 2020 Mr Tremlett’s back pain had developed after he came to surgical treatment and accepted Mr Tremlett may suffer some degenerate change in “the lumbar region”, Dr Millons did not accept there was causal connection between the condition Mr Tremlett suffers in his lumbar spine and the injury sustained on 24 November 2011. Rather Dr Millons considered Mr Tremlett’s low back symptoms came on spontaneously and may result from some degenerative change being aggravated on a daily basis by the normal activities of daily living.
Following a review of the evidence as a whole and careful consideration of submissions made by both counsel, in the absence of explanation by Dr New as to causal connection between any condition Mr Tremlett suffers in his lumbar spine, I do not accept Mr Tremlett has discharged the onus of proof required of him and I am not satisfied on the balance of probability that Mr Tremlett has suffered consequential condition to his lumbar spine as a result of the injury he sustained on 24 November 2011 in the course of his employment with Hays.
Consequential condition to the urinary system
In his statement Mr Tremlett made no current complaint of urinary system difficulties. However, Dr Teychenne reported Mr Tremlett noted urinary urgency some four months after coming to surgical treatment on 23 November 2015 under the care of Dr Winder. Mr Tremlett reportedly described losing control of urine “at times” and described his urinary urgency as coming on quite rapidly. Dr Teychenne provided opinion Mr Tremlett had sustained consequential condition to his urinary system as a result of the injury he had sustained to his cervical spine in the incident on 24 November 2011, specifically “spinal cord damage”, which is an injury I accept Dr Teychenne is able to assess.
Dr Wines too reported complaint by Mr Tremlett of daytime frequency. Dr Wines provided opinion it was not clear Mr Tremlett’s cervical spine injury was relevant to his reported urinary system difficulties, and recommended further diagnostic testing in the nature of ultrasound of the urinary tract, video urodynamic studies and pituitary studies, none of which are in evidence.
Although Dr Wines quibbled with Dr Teychenne’s ability as a neurologist to comment on urological matters, I accept Dr Teychenne provided opinion on a urological matter in the context of Mr Tremlett’s injury to his cervical spinal cord, being injury demonstrated on diagnostic imaging and injury accepted by Mr Tremlett’s treating neurosurgeons,
Dr Al Khawaja and Dr Winder, and also by Dr Bentivoglio in his capacity as independent medical examiner.Following review of the evidence as a whole and careful consideration of submissions made by both counsel I accept Mr Tremlett has discharged the onus required of him and I am satisfied on the balance of probability that Mr Tremlett has sustained a consequential condition to his urinary system as a result of the injury he sustained on 24 November 2011 in the course of his employment with Hays. I prefer to the opinion provided by Dr Teychenne to that provided by Dr Wines as Dr Wines recommended further diagnostic testing to enable informed opinion, which is not in evidence, and there is no further opinion provided by
Dr Wines following such recommendation.
Permanent impairment
Liability is accepted for the injury Mr Tremlett sustained to his cervical spine on
24 November 2011 in the course of his employment with Hays and the parties agree
Mr Tremlett has sustained 30% WPI resulting from that injury and surgical scarring.I have determined Mr Tremlett sustained injury to his nervous system (brain injury) on
24 November 2011 in the course of his employment with Hays and that his employment was a substantial contributing factor to injury. I have also determined Mr Tremlett sustained consequential condition to his urinary system.It is appropriate Mr Tremlett’s claim for permanent impairment compensation resulting from injury he sustained to his nervous system (brain injury) and consequential condition to his urinary system be remitted to the President for referral to a Medical Assessor for assessment of WPI resulting from injury and consequential condition. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are:
(a) ARD and attached documents, and
(b) Reply and attached documents.
SUMMARY
Liability is accepted for the injury Mr Tremlett sustained to his cervical spine on
24 November 2011 in the course of his employment with Hays and the parties agree
Mr Tremlett has sustained 30% WPI resulting from that injury and surgical scarring.I have determined Mr Tremlett sustained injury to his nervous system (brain injury) on
24 November 2011 in the course of his employment with Hays, and that his employment was a substantial contributing factor to injury. I have also determined Mr Tremlett sustained consequential condition to his urinary system. I do not accept Mr Tremlett sustained consequential condition to his lumbar spine.It is appropriate Mr Tremlett’s claim for permanent impairment compensation resulting from injury he sustained to his nervous system (brain injury) and consequential condition to his urinary system be remitted to the President for referral to a Medical Assessor for assessment of WPI resulting from the injury and consequential condition. The date of injury is 24 November 2011. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are:
(a) ARD and attached documents, and
(b) Reply and attached documents.
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