Turner v Plumbers Supplies Co-Operative Limited
[2022] NSWPIC 354
•4 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Turner v Plumbers Supplies Co-Operative Limited [2022] NSWPIC 354 |
| APPLICANT: | Bailey Turner |
| RESPONDENT: | Plumbers Supplies Cooperative Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 4 July 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation; left upper extremity (shoulder, elbow and ulnar nerve) injury and scarring accepted and the subject of referral to Medical Assessor (MA); claim in respect of cervical spine injury disputed; Held – the applicant has the onus of proving he suffered a cervical spine injury University of New South Wales v Brooks applied; it is necessary to establish not only an injurious event but also a demonstrable pathological change to the allegedly affected body part or system Castro v State Transit Authority (NSW) and Trustees of the Society of Saint Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear followed; the applicant suffered neck symptoms; however, it is necessary to determine whether, on a common sense basis an injury within the meaning of section 4 of the Workers Compensation Act 1987 to that body part has caused the symptoms complained of; Kooragang Cement Pty Ltd v Bates referred to; in this matter the applicant’s treating specialists noted his symptoms could have been as a result of an upper extremity injury or a cervical injury; they accordingly ordered a cervical magnetic resonance imaging (MRI) to determine whether there was any pathology present; that MRI was reported on by all doctors who saw it as showing no abnormality; on balance, the treating and Independent Medical Examiner medical evidence does not establish the presence of a cervical spine injury; award for the respondent on the claim for cervical spine injury; balance of matter remitted to the President for referral to a MA to determine whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury in the course of his employment to his left upper extremity (shoulder, elbow and ulnar nerve) together with scarring on 23 August 2019. 2. Award for the respondent on the claim for injury to the cervical spine. 3. The balance of the claim is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: · Date of injury: 23 August 2019. · Body systems referred: left upper extremity (shoulder, elbow and ulnar nerve), scarring (TEMSKI). · Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with the determination to include the following: a. this Certificate of Determination and Statement of Reasons; b. Application to Resolve a Dispute and attachments, and c. Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
On 23 August 2019, Bailey Turner (the applicant) was in the course of his employment with Plumbers Supplies Cooperative Ltd (the respondent) and working in the retail warehouse. The applicant was lifting a hot water system which weighed approximately 110 kg and which was over 1.5 m in height. He was performing this duty alone and was attempting to lever the hot water system onto a trolley so it could be moved into a storeroom.
As the applicant was pulling on straps attached to the box in which the hot water system was packed, he felt his “arm tense up and a burning sensation through my forearm and all the way up my left shoulder to my neck”. The applicant left work and consulted his local general practitioner. He was sent for radiological investigations and returned to work on light duties approximately two days after the incident at issue, having been diagnosed with bursitis and impingement in his left shoulder.
The applicant claims compensation for permanent impairment to his left upper extremity (shoulder, elbow and ulnar nerve) together with scarring. He also claims injury to his cervical spine. It is the latter alleged injury which remains an issue. The applicant’s alleged left arm injuries and scarring will, regardless of the outcome of the dispute concerning his cervical spine, be remitted to the President for referral to a Medical Assessor to determine his level of permanent impairment.
ISSUES FOR DETERMINATION
The parties agreed that the only issue for determination is whether the applicant suffered an injury to his cervical spine in the course of his employment on 23 August 2019.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 17 June 2022. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr McMahon of counsel instructed by Ms Mead appeared for the applicant. Mr Perry of counsel instructed by Ms Biscavich appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered an injury to his cervical spine
It is trite to say the applicant has the onus of proving that he suffered an injury to his cervical spine as alleged. Injury is relevantly defined in section 4 of the Workers Compensation Act 1987 (the 1987 Act) as follows:
“In this Act: injury means
(a) personal injury arising out of or in the course of employment.”
There is a lengthy body of case law which establishes that an injury consists not only of the injurious event, but a sudden or identifiable pathological change brought about by that event: see for example Castro v State Transit Authority (NSW) [2000] NSWCC 12 and Trustees of the Society of Saint Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWCCPD 47. In the latter decision, Roche DP noted:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden, unascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change.”
It follows from this line of authority that in order to succeed on the claim for injury to the cervical spine, the applicant will need to demonstrate the pathological change in that body part rather than mere symptomology, no matter how persistent or debilitating. For the following reasons, I do not believe the applicant has discharged that onus of proof.
An examination of the medical evidence in this matter reveals not one treating medical practitioner supporting the proposition of cervical injury to the applicant. That is not to say there is any issue the applicant has suffered symptoms to his neck. Nor does the absence of treating opinion in support necessarily mean an injury cannot be found. Rather, what is required is an examination of all of the lay and medical evidence to determine whether, on a common sense basis, it can be said that there is an injury to the cervical spine causing the applicant’s symptoms in that body part: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
The applicant’s case was presented on the basis that he had complained of symptoms in the cervical spine which his Independent Medical Examiner (IME) Dr Bodel found to be consistent with a soft tissue injury to the neck. In his report dated 31 May 2021, Dr Bodel relevantly noted the applicant’s complaint of pain and stiffness in the region of his neck. Upon examination, Dr Bodel made the following findings:
“He has tenderness in the trapezius muscles at the base of the neck on the left-hand side and guarding in that area over the top of the left shoulder. He has reduced range of neck flexion, extension and rotation in all directions but this is most restricted on extension and rotation to the right.”
When asked to provide a specific diagnosis, Dr Bodel replied:
“a soft tissue injury to the neck, rotator cuff pathology in the left shoulder, a traumatic ulnar neuritis in the region of the left elbow and referred pain and weakness down the whole of the left arm, caused by the injury that occurred at work on 23 August 2019.”
For the respondent, Mr Perry submitted that radiological investigation had ruled out any lesion to the cervical spine. Mr McMahon for the applicant had noted his client’s case was not put on the basis of the cervical lesion, but rather there merely being a soft tissue injury.
I accept Mr McMahon’s submission that the applicant has not put his case on the basis of a finding of specific cervical lesion, however, it is still necessary for the applicant to discharge the onus of proof by establishing some pathological change sufficient to make a finding consistent with injury pursuant to section 4 of the 1987 Act.
In University of New South Wales v Brooks [2014] NSWWCCPD 68, the Commission noted:
“As to the issue of onus of proof generally, it is prudent to keep in mind the basic principles. They are that ‘if evidence is required to make an issue, the party asserting the factual basis for the issue raised bears the responsibility for producing the necessary evidence’ (Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 (by the Court – Bathurst CJ, Beazley P and Tobias AJA) at [112]).”
In a supplementary report dated 8 February 2022, Dr Bodel was asked to comment on the opinion of Dr Burrow, IME for the respondent who had made a clinical examination approximately six months after Dr Bodel’s assessment. In commenting on Dr Burrow’s findings, Dr Bodel noted that things may have changed in the time between the assessments by the respective IMEs. Nevertheless, Dr Bodel was still of the view “that the mechanism of injury could have caused injury to the cervical spine...”.
Dr Burrow, IME for the respondent carried out an examination of the cervical spine which he described as showing “generous, near full movement” with complaints of trapezial pain without spasm or guarding and with no evidence of radiculopathy, motor weakness or asymmetry abnormality of the upper limb reflexes. He described all of the applicant’s alleged injuries as follows:
“Mr Turner cannot explain the cause of each injury, but he clearly wrenched his left upper extremity when lifting a heavy hot water tank, and I believe he suffered a brachial plexopathy by way of stretching of the brachial plexus without frank structural injury to the nerve roots exiting the cervical spine with no distinct cervical spine condition, no specific brachial plexus mechanical injury, just pain, no structural injury to the shoulder or specifically to the elbow, but there were localised signs to the ulnar nerve at the elbow which were temporarily improved by cubital tunnel release surgery, only for the symptoms to recur in April 2021 and continued currently.”
Dr Burrow ruled out the applicant having suffered a specific structural injury to the cervical spine in the incident at issue. In so doing, Dr Burrow commented on the findings of an MRI carried out on 27 August 2020, which has been reported by all doctors who have seen it as showing no neural impingement. It is noteworthy and regrettable that the report of the MRI is not itself in evidence, however, it appears uncontroversial to say that every doctor who has reported on it has described its findings as normal.
In his statement, the applicant said at paragraph 56:
“I have always reported to my treating doctors the pain and impairment in my neck, left shoulder and elbow and all through my left arm. The focus of my treatment has been primarily on my ulnar nerve but that is not to say that I have not suffered impairment on the other body parts due to my workplace injury.”
It does not appear to be in issue that the applicant has complained of pain in his neck, however, this is not a matter where there has merely been a lack of attention to a body system about which the applicant has complained in favour of other areas which have been injured. Rather, the applicant’s treating pain specialist and orthopaedic surgeon, Dr Tame and Dr Kumar, have both looked at the question of whether the applicant suffered injury to the cervical spine and have ruled it out. As Mr Perry noted, not one treating doctor in this matter supports a finding that the applicant suffered injury in his neck.
On 19 August 2020, Dr Tame wrote to Dr Kumar having examined the applicant for the first time. He diagnosed the applicant’s presentation as complex and noted:
“Bailey’s mechanism of injury would also be consistent with cervical spine pathology. Compressive pathology in the cervical spine needs to be eliminated. Bailey has abnormal sensory findings and neuropathic symptoms in the broader area and the distribution of the ulnar nerve. I have recommended that Bailey have an MRI scan of his cervical spine….
It is essential that we obtain a cervical spine MRI to make sure there is no compressive pathology in Bailey’s cervical spine that could be contributing to his symptoms.”
It was this MRI which was carried out on 27 August 2020, and which showed no evidence of any pathological change in the cervical spine.
Mr Perry submitted, and I accept, that the subsequent reports of Dr Tame after the MRI was carried out make it clear that he had excluded cervical pathology from the applicant’s clinical picture. On 28 September 2020, Dr Tame again wrote to Dr Kumar and described the applicant as having a “clear diagnosis of ulnar neuropathy” and suggesting that he may respond to neuropathic pain medication trials, regional anaesthetic blocks and possibly a ketamine infusion if the neuropathic pain was proving difficult to control.
The applicant came to have surgery by way of left-sided ulnar nerve transposition at the hands of Dr Tame, which the doctor described as “by far the most impressive result I have ever seen following ulnar nerve transposition”. At that time, the applicant had been able to return to plumbing and had restarted competitive rugby.
Mr Perry noted that Dr Bodel did not have the benefit of seeing the MRI to the applicant’s cervical spine. The treating doctors who have had the benefit of seeing that scan have ruled out any pathology in that body part.
It follows that Dr Bodel crucially not having the benefit of examining the cervical MRI renders his opinion less persuasive than those of the treating doctors and Dr Burrow, none of whom make a finding of cervical spine injury.
Further support for the proposition that the applicant’s cervical spine symptomology is linked to his left upper extremity injury can be found in the report of Dr Kumar, treating orthopaedic surgeon to the applicant’s general practitioner Dr Kolli dated 23 December 2020. That report was provided eight weeks after the ulnar nerve decompression. Dr Kumar reported:
“He is still getting quite a lot of abnormal pain and sensory disturbance around his neck, across his shoulder blade and down his arm. This was as expected, and
I understand that he is catching up with Dr Tame in early 2021, to make further determinations from this point of view.”In other words, Dr Kumar was comfortable with the suggestion that the ongoing neck symptoms would be referrable to the ulnar nerve complaint. Dr Tame then reviewed the applicant on 31 March 2021 and at that time noted he had made excellent progress, the most impressive Dr Tame had ever seen. In that report, Dr Tame made no mention of any neck injury or indeed any ongoing symptoms. He stated that the applicant’s residual symptoms will likely improve overtime.
Ms McGrath, exercise physiologist provided a report to the respondent’s insurer on 23 December 2020. She noted:
“Bailey reports variable levels of pain. Today he reports 4/10 pain. At times, the pain will travel from his neck and shoulder right down to his elbow. He does get some tingling on his fingers until he tells me that his forearm is constantly numb. He explained to me that the original injury was his shoulder. He is seeing a physio weekly.”
Dr Kumar provided a report to the respondent’s insurer dated 24 September 2020 in which he was asked to provide a diagnosis of the applicant’s injury. He diagnosed left elbow cubital tunnel syndrome, sensory change in the ulnar nerve distribution and evidence of neuropathic pain in the same distribution, confirmed by nerve conduction studies performed by
Dr Katekar. Dr Kumar did not diagnose any cervical spine injury.On 3 September 2020, Dr Kumar reported to Dr Kolli, general practitioner that he was “pleased to report that Bailey’s MRI of his cervical spine has come back with no abnormality”. Dr Kumar noted that Dr Tame was considering the ulnar nerve transposition surgery and then in the light of Dr Tame doing “a fantastic job of clarifying the current situation”, the proposed ulnar nerve symptoms and neuropathic pain would hopefully be assisted by the proposed surgery. Given Dr Tame’s post-operative report on the applicant’s progress, it appears that this in fact happened.
The examination of the general practitioner clinical records at Aberglasslyn Medical Centre reveal the applicant consulted Dr Kolli on 10 January 2020, some five months after the injury. The history taken by the general practitioner at that time was of severe shoulder pain radiating to arm and neck. I do not place a great deal of store in the history taken by the treating practitioner in their clinical records, however, that entry is consistent with the presence of and complaints surrounding a left upper extremity injury.
The applicant’s first report of injury was provided to Dr Leung at Myhealth Medical Centre Top Ryde on the date of injury. That entry records the following:
“Was lifting a header at work this morning
Felt significant pain in the left shoulder and arm
Informed work
Examination:
Tender near elbow attachment for biceps
Tender near shoulder attachment of biceps
Shoulder ROM normal
No significant bruising
No significant deformity to biceps that is easily discerned
Plan
1. Ice pack
2. Nurofen prn
3. USS
4. WorkCover Certificate completed
5. Review next week”
The applicant then attended on Dr Leung’s practice on no fewer than 10 occasions from the date of injury to 19 December 2019, and there was no complaint of cervical pain recorded in any entry.
I reiterate that this does not mean the applicant was not experiencing pain, and I do not make any criticism of him for a lack of entry to that effect. Indeed, I accept the applicant suffered from neck pain following the injury, however, there is no discernible pathological change to that body system demonstrated in any of the treating or radiological material. Indeed, the outcome of the cervical MRI and the reports of the treating clinicians in my view suggest an injury to the left upper extremity with neuropathic elements and pain radiating into the neck, rather than establishing a basis for any pathological change to the cervical spine itself.
This being so, I find the applicant has not discharged his onus of proof on the balance of probabilities in establishing the presence of a neck injury, and accordingly there will be an award for the respondent on this aspect of the applicant’s claim, with the balance of the claimed body system’s being remitted to the President for referral to a Medical Assessor.
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