Waltis v Mega Cranes
[2021] NSWPIC 307
•25 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Waltis v Mega Cranes [2021] NSWPIC 307 |
| APPLICANT: | Jarrin Waltis |
| RESPONDENT: | Mega Cranes |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 25 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment as a result of injury to the lumbar spine, conceded by the respondent, and the thoracic spine, not conceded; the applicant suffered from pre-existing asymptomatic Scheuermann’s disease in the thoracic and upper lumbar spine; the respondent submitted that the applicant’s evidence had raised the possibility only of injury to the thoracic spine in addition to the conceded injury to the lumbar spine; detailed examination of the medical evidence which, when considered with the applicant’s evidence, found to be sufficient for a finding that the applicant had discharged the onus on him to show that on the balance of probabilities he suffered injury in the form of aggravation of Scheuermann’s in the thoracic spine at the time he suffered injury to the lumbar spine; EMI (Australia) Ltd v Bes referred to; Held- Matter remitted to the President for referral to Medical Assessor for assessment of WPI as a result of injury to the thoracic and lumbar spine; not suitable for video assessment. |
| DETERMINATIONS MADE: | 1. The applicant suffered injury to the thoracic spine on 8 November 2015 arising out of or in the course of his employment with the respondent. 2. Such injury was the aggravation of the pre-existing asymptomatic Scheuermann’s disease in the thoracic spine. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of injury to the thoracic spine and lumbar spine on 8 November 2015. 4. The documents to be reserved to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 19 July 2021 and attachments, and (d) Certificate of Determination and Statement of Reasons. 5. The matter is not suitable for video assessment. |
STATEMENT OF REASONS
BACKGROUND
Jarrin Waltis (the applicant/Mr Waltis) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury to the lumbar spine and thoracic spine on 8 November 2015 arising out of or in the course of his employment with Mega Cranes (the respondent).
On that day Mr Waltis, in company with other workers, was dismantling a crane at a worksite in Carlingford, and attempting to remove two troublesome pins on the base of the crane. This was a job that would normally take 15 minutes, but the last two pins took about two and a half hours each to remove, with each worker taking about eight swings of a 24-pound hammer in order to loosen each pin. On one occasion the applicant felt his back give as just as he hit the pin. He stopped work and reported the incident. Mr Waltis was in severe pain the next day, but he continued working for the following two weeks with the assistance of a significant intake of analgesia. He then ceased work and sought medical advice from his general practitioner.
The applicant was referred for x-rays of his spine and physiotherapy treatment. An attempted return to work in late 2015 was unsuccessful and he was referred to Dr Marcus Stoodley, neurosurgeon. Mr Waltis was not able to attend this specialist as he could not afford it at the time. A further attempted return to work with the respondent in early 2016 was again unsuccessful. On 14 August 2018 Mr Waltis eventually saw Dr Jacob Fairhall, neurosurgeon, who reviewed his most recent MRI scan and assessed Mr Waltis as having had a significant injury affecting his upper lumbar spine. He was sent for a standing x-ray and a bone scan.
On 14 March 2019 Dr Fairhall reviewed the applicant with the benefit of the bone scan and
x-rays and held to the view that he had suffered a significant work related injury. Dr Fairhall supported a return to work with the assistance of a rehabilitation consultant to assist.
Mr Waltis remained under the care of Dr Fairhall until 28 February 2020; surgery was not recommended.The applicant was independently medically assessed by Dr David Millons, orthopaedic surgeon, on 9 December 2020, and in a report dated 11 December 2020[1] the doctor diagnosed Mr Waltis as suffering from:
(a) pre-existing Scheuermann’s disease with wedging at L1, L2 and L3;
(b) Schmorl’s nodes at various levels through the spine, and
(c) mechanical backpain as a result of the incident on 8 November 2015, possibly with some disruption at the thoracolumbar level.
Dr Millons assessed the applicant as having sustained 11% whole person impairment (WPI) as a result of injury to the thoracic spine (5% WPI) and lumbar spine (6% WPI).
[1] Application to Resolve a Dispute (ARD) p 13, noting that reference to page numbers herein is to the pages in the Commission’s electronic records.
On 17 December 2020 a claim was made on the respondent’s insurer, GIO Workers Compensation (NSW) Limited (GIO) for lump sum compensation based on the report of
Dr Millons.Prior to that date, on 23 October 2020 the applicant had been independently medically examined by Dr Murray Hyde-Page, orthopaedic surgeon, at the request of GIO on 23 October 2020. In a report dated 3 November 2020[2] the doctor diagnosed the applicant as having developed chronic upper lumbar back pain with muscle guarding and stiffness. He said that Mr Waltis appeared to have aggravated underlying pre-existent asymptomatic Scheuermann’s disease of the lower thoracic and upper lumbar spine. In a supplementary report dated 2 February 2021[3] to GIO, Dr Hyde-Page said that the applicant did not suffer a work injury to his thoracic spine on 8 November 2015 and only injured his lumbar spine.
[2] Reply p 17.
[3] Reply p 24.
On 17 February 2021 GIO issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 [4] in which it disputed the claimed injury to the thoracic spine and therefore disputed that Mr Waltis was entitled to permanent impairment lump sum compensation. It accepted that the applicant injured his lumbar spine on 8 November 2015.
[4] Reply pp 2-6.
ISSUES FOR DTERMINATION
The parties agree that the following issue remains in dispute:
(a) did the applicant suffer injury to his thoracic spine on 8 November 2015 (s 4 of the 1987 Act)?
PROCEDURE BEFORE THE COMMISSION
10.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.
11.The parties attended a conciliation/arbitration hearing conducted via telephone conference on 11 August 2021. Mr W Carney of counsel appeared for the applicant briefed by
Ms A Tavianatos. The applicant attended on a separate line. Mr J Beran of counsel appeared for the respondent briefed by Mr S Lott.
EVIDENCE
Documentary Evidence
12.The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents (AALD) dated 19 July 2021 lodged by the applicant with the following attachments:
(i)report of Nick Hastings, Hastings Physiotherapy dated 5 March 2021, and
(ii)facsimile/report of Dr Xuchu Tong to Allianz Australia Workers’ Compensation (NSW) Limited (Allianz) dated 21 July 2017/4 August 2017.
Oral Evidence
13.There was no application to adduce oral evidence of to cross-examine the applicant.
SUBMISSIONS
14.The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary they are as follows, noting that by agreement between counsel, the respondent presented its submissions first.
Respondent
15.The respondent notes that there is no evidence from the doctor who treated the applicant immediately after the injury of 8 November 2015 or the specialist who treated him thereafter. In this regard the respondent notes from [23] and subsequent paragraphs of Mr Waltis’ statement dated 17 June 2021[5] that he consulted Dr Marie Kamal about two weeks following the injury on 8 November 2015, Dr Altan Capa on 27 November 2015 and Dr David Allan of the Port Macquarie Medical and Dental Centre in early 2016 after he returned to Telegraph Point to live. He also saw Dr Raymond Jones at that Centre on 12 February 2016. The respondent submits that, if the applicant is to be successful in showing that he suffered injury to his thoracic spine on 8 November 2015, he should at least have produced medical evidence which was contemporaneous with the date of injury. The respondent notes that the most contemporaneous report is that of Dr Tong dated 4 August 2017 in response to the facsimile from Allianz dated 21 July 2017[6]. The document most contemporaneous to the date of injury is the Worker’s Injury Claim Form dated 12 July 2016, in which the injury is stated to be “Lumbar spine with referal [sic] pain into the left leg.”[7]
[5] ARD p 8.
[6] AALD p 3.
[7] ARD p 2.
16.The respondent notes that Dr Tong in his report dated 4 August 2017 cannot comment on the mechanism of injury. The doctor says that it is plausible, not probable, that the applicant could suffer from ongoing thoracic spine pain after an injury. Nick Ratcliffe, the physiotherapist who treated Mr Waltis for stiffness in the thoracic spine, makes no comment on the causation of such pain.[8]
[8] AALD p 2.
17.The respondent notes that there is no reference in the clinical notes of The Good Shepherd Medical and Dental Centre[9], covering the period to12 June 2019 and thereafter until 30 September 2019, to pain in the thoracic spine, only reference to pain in the lumbar spine.
[9] ARD p 25.
18.Dr Jacob Fairhall, the neurosurgeon who first saw the applicant on 14 August 2018[10], makes no reference to the thoracic spine, only the lower back. He does refer paravertebral muscle spasm in the report of that date and in subsequent reports.
[10] ARD p 42.
19.The respondent submits that there is no reference to the thoracic spine in the WorkCover certificate of capacity in evidence dated 5 July 2016 attached to the Reply[11]. It is noted that the certificates of capacity containing certification of capacity for some type of employment from 23 December 2012 and thereafter[12] are issued by Dr Jun Zhang, who practised from a different medical centre to that mentioned in [17] above.
[11] Reply p 13.
[12] Reply from p 27.
20.The respondent submits that the scan evidence demonstrates that the applicant suffers from Scheuermann’s disease affecting the thoracic and upper lumbar spine, and that Dr Millons in his report dated 11 December 2020 diagnoses the applicant as suffering from mechanical back pain as a result of the incident on 8 November 2015, possibly (emphasis added) with some disruption at the thoracolumbar level[13]. The respondent submits that this is as high as the applicant’s case gets, that is, raising the possibility of injury to the thoracic spine not the probability of such injury.
[13] See [3] at ARD p 23.
21.The respondent relies on the opinion of Dr Hyde-Page expressed in his report dated 3 November 2020 and supplementary report dated 2 February 2021[14]. The respondent stresses the normal examination of the thoracic spine found by the doctor on examination, and the muscle guarding also found. The finding of muscle guarding was consistent with the finding of Dr Fairhall.
[14] Reply p 24.
22.The respondent submits that, in accordance with what was stated by the Court of Appeal in Nguyen v Cosmopolitan Homes[15], the Commission could not be persuaded that the applicant suffered injury to his thoracic spine on 8 November 2015. The possibility of such injury only is raised by the evidence relied upon by the applicant.
[15] [200] NSWCA 246.
Applicant
23.The applicant submits that, having regard to the medical evidence, he has discharged the onus on him to show that he injured his thoracic spine on 8 November 2015.
24.The applicant emphasises the arduous nature of the task in which he was involved with other workers on 8 November 2015, using a 24-pound hammer to loosen pins at the base of a crane which was being dismantled, and one which took two and a half hours to free each of the two pins as opposed to the 15 minutes per pin which such a job would normally take. The applicant refers to the subsequent history of events thereafter until he first sought treatment from doctors and a physiotherapist, the attempted return to work in early 2016, and the referral to Dr Marcus Stoodley, neurosurgeon, by Dr Jones in February 2016, a referral that he could not take up due to his inability to afford the consultation.
25.The applicant notes that up until he saw Dr Zhang [sic, Dr Tong] some 18 months after the injury, he did not have a lot of treatment apart from physiotherapy. The applicant emphasises that, notwithstanding what is recorded in the Worker’s Injury Claim Form of lumbar spine pain with referral to the left leg which would indicate an injury at the L4/5 or L5/6 level of the spine, that was not the case. Clearly there was no injury to the lower lumbar spine and that is confirmed by Dr Fairhall in his report dated 14 August 2018. The reference to referral of pain from the lumbar spine into the left leg is an incidental finding of no assistance to determining what is the real issue in the case.
26.The applicant acknowledges the reference in the clinical notes of The Good Shepherd Medical and Dental Centre to aggravation in the lumbar spine injury in 2015 and chronic back pain. Again, the applicant submits that again this is a neutral finding of no assistance to the real issue to be determined. Those notes might be significant if the reference was to lower back pain or pain at the base of the spine; however, the reference is to chronic back pain which is consistent with the diagnosis of the two medico-legal specialists who have examined Mr Waltis. What is significant about the examination of Dr Fairhall, a treating specialist, is that he has not made a diagnosis.
27.The applicant submits that the report of Dr Tong dated 4 August 2017 is significant in that it was requested by Allianz in respect of the thoracic spine, so that there must have been some issue concerning the thoracic spine which caused Allianz address an enquiry to the treating doctor. The reason for such enquiry could not have been as a result of the report from the physiotherapist to Allianz, which was dated 5 March 2018[16]. That report is of assistance, as the physiotherapist was giving treatment aimed at trying to mobilise the thoracic spine and decrease the muscle spasm. The treatment of muscle spasm is also relevant having regard to the finding by Dr Fairhall of paravertebral spasm, not specific as to any part of the spine. This is significant because of what Dr Hyde-Page reads into Dr Fairhall’s reports, not what the doctor actually says.
[16] AALD p 2.
28.The applicant submits that Dr Tong in giving his report 18 months after the injury was doing his best to answer the queries raised by Allianz, relying on information from the physiotherapist, who could have been a physiotherapist other than Nick Ratcliffe who prepared the report dated 5 March 2018. Whilst it was difficult for Dr Tong to comment on the initial injury, he does find that it is plausible that Mr Waltis’ description of the injury could be causative of the ongoing thoracic spine pain.
29.The applicant acknowledges that the only detailed description of the mechanism of injury is in his statement made in 2021, but this description of injury is given to Dr Tong who finds that plausibly it could have been causative of the complaint of pain in the thoracic spine. The applicant also notes that there is no detail in the Worker’s Injury Claim Form as to where the pain is centred. The applicant notes that Dr Tong at [8] in his report refers to the development of Scheuermann’s disease and to the discussion that the doctor had with his senior colleagues as to the progress of symptoms of such disease with maturity and conservative management. The applicant submits that Dr Tong’s report is fair and balanced, having regard to when he first saw him, and the history of the injury received. Dr Tong raises the possibility of aggravation of the Scheuermann’s disease. Aggravation of such disease caused by the incident of 8 November 2015 constitutes an injury.
30.The applicant notes that Dr Fairhall’s assessment on 14 August 2018 is of a significant injury affecting his upper lumbar spine. The report of that date contains a detailed history of the mechanism of injury. The x-ray dated 9 November 2018[17] of the thoracic spine, requested by Dr Fairhall, refers to minor vertebral irregularity possibly related to Scheuermann’s disease. The bone scan dated 12 November 2018[18] refers to chronic lower back pain. The CT scan of the thoracic and lumbar spine dated 21 July 2017 refers to findings suggestive of Scheuermann’s disease involving the lower thoracic and upper lumbar spine from T12 to L4 level.
[17] ARD p 48.
[18] ARD p 49.
31.The applicant notes that Dr Fairhall in his report dated 28 October 2018[19] again refers to paravertebral spasm. However nowhere in Dr Fairhall’s reports is there mentioned that such spasm refers to either the lumbar spine or to the thoracic spine. There is just mention that such condition exists.
[19] ARD p 45.
32.The applicant relies upon Dr Millons report who assesses according to DRE (diagnosis-related estimate) II and bases his assessment on restriction in movement, by which he means dysrhythmia of movement, that is non symmetrical, because symmetrical movement would not qualify for DRE II. On the other hand, Dr Hyde-Page bases his assessment on muscle spasm which is one of the signs required for DRE II. The applicant notes that assessments based on restriction of movement and muscle spasm are signs of non-verifiable radiculopathy.
33.The applicant submits that Dr Millons records a history and refers to all the medical reports, including the reports of Dr Fairhall in particular, of which he was aware. In the opinion of
Dr Millons, the applicant suffered a substantial aggravation of the issues at the thoracolumbar level in the incident on 8 November 2015 when there does appear to have developed some mechanical issues in swinging a 24 pound hammer to free up some pins in the base of a crane tower.34.The applicant submits that Dr Raymond Jones in his referral to Dr Marcus Stoodley dated 12 February 2016[20] has recorded an incorrect history when he refers to recurrent back problems since an assault four years previously. Mr Waltis has never given that history to any doctor at any time. The applicant was unable to see Dr Stoodley, and Dr Jones in that referral does not refer to the history of the subject accident at all. Further, there has been no suggestion of fractures at L1 and L2.
[20] ARD p 10.
35.The applicant notes that Dr Hyde-Page in his report dated 3 November 2020 finds that he appears to have aggravated the underlying Scheuermann’s condition where the aggravation has never ceased. The Scheuermann’s disease was not significantly symptomatic before the work injury. In respect of the opinion of Dr Hyde-Page expressed in his report dated 2 February 2021, the applicant submits that his finding, based on the x-rays and scans showing that the Scheuermann’s disease involves the upper lumbar from L1 to L3 and only minimal involvement of the T12 thoracic vertebra, is all that is needed to show injury to the thoracic spine.
36.The applicant submits that the opinion of Dr Hyde-Page is not supported by the opinion of
Dr Fairhall, in view of Dr Fairhall’s finding of disease in the upper lumbar spine. The applicant submits that Dr Hyde-Page is reading more into Dr Fairhall’s report than is warranted.37.The applicant submits that there should be a referral of the matter to a Medical Assessor for assessment of WPI as a result of injury to the thoracic and lumbar spine on 8 November 2015.
Respondent in reply
38.The respondent submits that Dr Hyde-Page says that there is only evidence of muscle guarding, and quite clearly that there is no injury to the thoracic spine. It submits that aggravation of a condition at one level of the spine does not mean that aggravation of the Scheuermann’s disease at another level of the spine. The respondent submits that, if the applicant had injured his thoracic spine, Dr Fairhall would have stated this rather than referring to the upper lumbar spine only.
39.The respondent rejects the applicant’s submission that Dr Jones has an incorrect history in his referral to Dr Stoodley dated 12 February 2017, referred to in [34] above. The respondent points to the history recorded in the report of the MRI scan of the lumbar spine dated 11 February 2016[21].
[21] Reply p 8.
FINDINGS AND REASONS
Contemporaneous medical records
40.The applicant acknowledges the absence of medical records contemporaneous with the injury of 8 November 2015. The medical evidence most contemporaneous to that date is a medical certificate of Dr Altan Capa dated 27 November 2015[22] containing a certification of unfitness in Mr Waltis to continue his usual occupation from 27 November to 4 December 2015. It does not include the reason for unfitness, and as the respondent points out, there are no clinical notes of Dr Capa in evidence. In his statement Mr Waltis says that he saw this doctor at the Blacktown Family Medical Centre on 27 November 2011, and that he had previously seen Dr Maria Kamal at that Centre on the day he left work, about two weeks after the injury. In late 2015 he attempted to return to work, with Tower Cranes in Sydney but only lasted three hours before he had to cease because of unbearable pain. He then moved to Telegraph Point to live with his parents in early 2016.
[22] Reply p 7.
41.On 11 February 2016 the applicant underwent an MRI scan of his lumbar spine at the request of Dr David Allan. In the history recorded in the report of the MRI scan, reference is made to “Lower back pain following assault in 2011. Known L2/3 wedge fractures.” The “Impression” expressed by the author of the report, Dr Thomas Murphy, is:
“1. Findings again compatible with old compression deformities or changes of the
residual of Scheuermann’s disease. No more than minimal narrowing of the spinal canal at L2/3 can be seen.
2. Mild facet degenerative changes at L4/5.”
42.On 12 February the applicant saw Dr Raymond Jones who wrote a referral to Dr Marcus Stoodley, neurosurgeon. Mr Waltis did not see Dr Stoodley due to lack of funds. In that referral dated 12 February 2016, Dr Jones refers to:
“Presenting Problem:
recurrent back probiems since assault 4 yrs ago fractures L 1 L2 thanks for your review Ray Jones”
43.There is no reference by Dr Jones to the back injury sustained by Mr Waltis on 8 November 2015 and, apart from the reference in the MRI scan report of residual Scheuermann’s disease, this evidence is of no assistance in determining the issue in the current proceedings. In his statement the applicant refers to the random assault on him in 2012 when he was spear fishing with his brother at Lighthouse Beach and was hit three times in the back and upper left shoulder with a dumb bell pole. I accept his evidence that after he sought medical attention and underwent scans which showed no abnormalities, he did not have any recurring pain as a result of this incident. It would have been very difficult for him to undertake the very arduous work that he performed with the respondent between August and 8 November 2015 if he was suffering from back pain.
44.In early 2016 the applicant returned to work with the respondent on light duties in Sydney where he only lasted two to three weeks as he was still required to do dogging of loads, and trowelling of chains and slings around loads. He could not do this work and ceased this attempted return to work.
45.Mr Waltis then lodged his Worker’s Injury Claim Form dated 12 July 2016 in respect of the injury of 8 November 2015 in which he describes his injury as “Lumbar spine with referal [sic] pain into left leg” and gives a description of how he was injured consistent with what is in his statement. I accept the applicant’s submission that again this report of radiation of pain into the left leg, indicating a possible lower lumbar spinal injury, does not assist in determining the current issue. It is not in dispute that the symptoms complained of by Mr Waltis were in the upper lumbar area, and lower thoracic area of the spine. Both Dr Millons and Dr Hyde-Page record Mr Waltis as complaining of symptoms in the thoracolumbar area of the spine, although there is also record of complaint to these two doctors of pain spreading down into the left lower region and into the left buttock, the left leg and to the foot and heel.
46.The applicant was treated by Dr Tong from 8 May 2017 and by physiotherapist, Nick Ratcliff, apparently in early 2018. The reports of these practitioners are attached to the AALD and referred to at [27]-[29] above. In his report to Allianz dated 5 March 2018 Mr Ratcliff notes marked stiffness throughout the applicant’s thoracic spine, and that his treatment was aimed at trying to mobilise the thoracic spine and decrease the muscle spasm with some soft tissue massage, thoracic spine mobilisation, dry needle acupuncture, posture review and posture taping.
47.Dr Tong’s report was produced in response to a facsimile from Allianz dated 21 July 2017 requesting information about the thoracic spine. The questions posed by the author of the fax asked Dr Tong to address the following matters:
(a) how the onset of thoracic pain and symptoms was directly related to the accepted workplace injury to the lumbar spine;
(b) if the applicant had participated in any activities outside the workplace which may have resulted in injury or aggravation of existing pathology to the thoracic spine;
(c) the mechanism of injury to the thoracic spine;
(d) the current presentation and symptoms of the applicant’s thoracic spine;
(e) the possibility of the applicant experiencing pain and symptoms of the thoracic spine due to a pre-existing or congenital condition in the thoracic spine;
(f) the probability that the applicant would have experienced the same clinical signs and symptoms of the thoracic spine, at the same stage in life, if the workplace incident had not occurred;
(g) recommended treatment for the thoracic spine, and
(h) advice as to whether the applicant’s pre-existing spinal scoliosis was contributing to the current pain and symptoms Mr Waltis was experiencing in the thoracic spine, and the reasoning for such advice.
48.Dr Tong records that Mr Waltis reported ongoing back pain at the level of the thoracic spine with exertion and intermittent numbness in his arms and legs. He says that it is plausible that the mechanism of injury could cause the ongoing thoracic pain from which Mr Waltis suffers.
49.Dr Tong says he is unaware of Mr Waltis participating in any activities that may aggravate his thoracic spine condition. He comments on the applicant’s mild scoliotic curvature with convexity to the left on the level of L3 and kyphosis. He says that whilst there is a small possibility that the scoliotic curvature could contribute to overall back/spine pain, this would typically present in the lower back rather than the reported site of pain in the thoracic spine.
50.Dr Tong expresses his opinion having regard to the limitation thereon that he only commenced treating Mr Waltis about 18 months after the injury. After discussion with senior colleagues, he raises the possibility that the Scheuermann’s disease could be contributing to the current symptoms following the injury of 8 November 2015.
51.I accept the applicant’s submission that the treatment by Dr Tong from 8 May 2017 and by Mr Ratcliff in early 2018, coupled with the applicant’s complaints of ongoing pain in the upper lumbar area, do provide support for a finding of the continuity of complaint of pain in the thoracic spine by Mr Waltis dating from after the injury.
52.The applicant then came under the care of Dr Fairhall who saw him initially on 14 August 2018. Subsequent consultations with this neurosurgeon were on 14 March 2019, 28 October 2019 and 28 February 2020[23]. On 14 August 2018 Dr Fairhall found on examination some paravertebral muscle spasm and reviewed the most recent MRI scan of the back, which appears to be dated 16 July 2018 and the subject of a report dated 17 July 2018[24].
Dr Fairhall assessed Mr Waltis as having had a significant injury affecting his upper lumbar spine. He sent him for a three foot standing x-ray and a bone scan. On 14 March 2019 the doctor found that the x-rays confirmed a forward sagittal alignment for which Mr Waltis was compensating. He did not comment on the bone scan. On examination Dr Fairhall found marked paravertebral muscle spasm and back pain rated at 3/10. He re-iterated his assessment of a significant work-related injury.[23] ARD pp 42-46.
[24] ARD p 40.
53.On 28 October 2019 Dr Fairhall reported that Mr Waltis had been making no substantial progress and remained deeply uncomfortable. He found:
“On examination, he has a forward station with paravertebral muscle spasm
indicating his sagittal malalignment and compensatory extensor dysfunction.”
54.This remained the position on 28 February 2020 when Dr Fairhall last reviewed Mr Waltis after repeat x-rays showed no change in sagittal alignment. There was a long discussion about the interventional possibilities in care, with the doctor deprecating the option of surgery. Dr Fairhall said that it was clear that the events of 2015 had given rise to the applicant’s chronic symptoms, and that a core strengthening programme would help to mitigate deterioration and pain in the future.
Scheuermann’s Disease
55.Dr D Millons independently medically examined the applicant on 9 December 2020. He recorded a history of the applicant’s past health, a history of the of the injury and subsequent treatment which, while “…a little confused…”, is in accord with that summarised above.
Dr Millons refers to the reports of Dr Fairhall and radiological investigations, including those predating the incident of 8 November 2015, in detail. The doctor records the current situation as related by the applicant as an awareness of continuing discomfort at the site of the thoracolumbar level with swelling to the left of that region which varies in size. On examination Dr Fairhall found a full range of movements through both shoulders with a complaint of some discomfort in the thoracolumbar level on full elevation of the arms. He found:(a) that the applicant stood with a gentle scoliosis convex to the right in the thoracic region and to the left in the lumbar region;
(b) the right scapula was quite prominent and there did appear some twisting in the thoracic region;
(c) some soft tissue swelling to the left of the thoracolumbar region;
(d) apparent localised kyphosis at the thoracolumbar region, and
(e) tenderness at the thoracolumbar level and also at the lumbosacral level and over the left sacroiliac joint.
56.Under “OPINION” Dr Millons notes that Mr Waltis has been carrying active problems with his back for over five years and that radiological studies have demonstrated what seems to be a past history of Scheuermann’s disease, which he goes on to describe. He refers to Schmorl’s nodes recorded in various reports at various levels that:
“…reflect herniation of an intervertebral disc through the vertebral body endplates with displacement of material into the vertebral bodies. That is usually an incidental finding but, on occasion, it has been recorded that in such an event of herniation of the disc can be painful.”
57.Dr Millons then goes on to state:
“Mr Waltis then was left with a spine that was the seat of a mild thoracolumbar scoliosis following on the old Scheuermann’s disease but he states that his back was asymptomatic and he was able to perform all of his normal duties untroubled. That may well be right.
The assault that he had in 2012 does not appear to have been responsible for the appearance of his lumbar vertebrae but that appearance more likely relates to the underlying condition.
There does appear to have been a substantial aggravation of the issues at the thoracolumbar level in the incident on 8 November 2015 when there appear to have developed some mechanical issues as he was swinging a 28 lb hammer to free up some pins in the base of a crane tower.”
58.In answer to a specific question as to diagnosis Dr Millons finds:
(a) pre-existing Scheuermann’s disease with wedging at L1, L2 and L3;
(b) Schmorl’s nodes at various levels throughout the spine;
(c) mechanical back pain as a result of the incident on 8 November 2015, possibly with some disruption at the thoracolumbar level, and
(d) failure of conservative treatment to date to alleviate symptoms and decreasing physical condition.
59.It is quite clear that the applicant suffered from pre-existing Scheuermann’s disease, which he submits was aggravated by the injury of 8 November 2015. This was in both the thoracic and lumbar spine. The applicant submits that this is sufficient for a finding of injury in the thoracic spine and that Dr Hyde-Page found that there had been such aggravation on 8 November 2015. Therefore, injury to both the thoracic and lumbar spine should be referred to a Medical Assessor for assessment of WPI.
Dr Murray Hyde-Page’s findings and opinion
60.In his report dated 3 November 2020 Dr Hyde-Page records a history of the injury to the applicant’s back on 8 November 2015, a brief history of treatment thereafter up until the initial consultation with Dr Fairhall on 14 August 2018 and the review by that doctor in October 2019 when non-operative treatment was discussed. He records Mr Waltis’ current status as left thoracolumbar pain and stiffness with acute flare ups of pain. The pain shoots intermittently into the left buttock and down the back of the left leg to the heel. No pain on movement was recorded. Present treatment was noted as physiotherapy and ingestion of Panadeine Forte as needed. Past health was recorded, with Mr Waltis stating that following the assault and x-ray of his back on 9 January 2012, that incident never caused any significant back trouble and did not prevent him from working at all. He had no treatment.
61.Examination revealed pain and discomfort in the left thoracolumbar area where there was muscle spasm and guarding. Despite that, the applicant had reasonably full rotation and tilt to the left and right. He could flex forward to reach his ankles and came back to extension comfortably. Dr Hyde-Page records no complaint of pain on the day of examination.
62.Overall Dr Hyde-Page’s examination indicated upper lumbar back pain with muscle guarding. The examination was otherwise normal. That was on a background of some mild thoracic kyphosis. Under “DIAGNOSIS, OPINION & PROGNOSIS” Dr Hyde-Page states:
“It would appear that as a consequence of straining his back in a work injury,
swinging a heavy hammer on the 8 November 2015, Jarrin Waltis has developed
chronic upper lumbar back pain with muscle guarding and stiffness. He appears to
have aggravated underlying pre-existent asymptomatic Scheuermann's disease of
the lower thoracic and upper lumbar spine.”
The doctor then notes that Scheuermann’s disease is a developmental condition that appears to have been previously asymptomatic, although he does note the x-ray of the lumbar spine in 2012 which Mr Waltis said was taken at the request of the Police following an assault, and not because he had significant symptoms or injury. Dr Hyde-Page also notes that Mr Waltis certainly did heavy manual work for the years leading up to his injury on 8 November 2015 without any significant back complaints. He states that on assessment on the day the applicant still had some upper left lumbar back pain and muscle guarding but normal examination otherwise.
63.In answer to specific questions Dr Hyde-Page states that:
(a) Mr Waltis appears to have aggravated an underlying Scheuermann’s disease or developmental kyphosis and wedging of the upper lumbar and lower thoracic spine with a work injury on 8 November 2015;
(b) he has developed chronic upper lumbar back pain with muscle guarding but no radiculopathy and has never made a complete recovery;
(c) the aggravation of the underlying condition by the work injury has never ceased, and now appears to be permanent;
(d) it appears that the Scheuermann’s disease was asymptomatic before the work injury, and
(e) the degree of WPI as a result of injury to the lumbar spine is assessed with reference to DRE Category II in accordance with AMA 5 at 5%.
64.In his supplementary report dated 2 February 2021 Dr Hyde-Page states his conclusion:
“…that Mr Waltis does not have a thoracic spine condition that needs to be taken into account. When I assessed him, he had symptoms in his thoracolumbar spine. There was only evidence of muscle guarding in the lumbar spine to give a DRE Category II lumbar spine complaint. He had completely normal examination of the thoracic spine.
I would also add that his xrays and scans only show that the underlying Scheuermann’s disease involves the upper lumbar from L1 to L3 vertebra and only the T12 thoracic vertebra is involved, in a minimal way.”
When asked if Mr Waltis suffered from a thoracic spine condition, Dr Hyde-Page says:
“Not applicable. He did not suffer a significant injury in the thoracic spine and any
pain in the lower thoracic spine was minimal as the major injury was to the upper
and mid lumbar spine. He has always had normal examination of the thoracic spine”
He later said that he did not find that there were significant pain or symptoms in the thoracic
spine, and that with the examination, he only found evidence of muscle guarding and
stiffness affecting the lumbar spine and not the thoracic spine. He found no evidence of
dysmetria with thoracolumbar spinal movement either. He could only conclude that the
applicant had DRE Category II lumbar spine injury that gave a level of WPI, which in his case
was 5% after taking into account the pre-existent Scheuermann’s disease in the upper
lumbar spine.
Injury to the thoracic spine
65.The applicant has consistently complained of pain in his lower back, extending up the back. At [16]-[18] of his statement dated 17 June 2021 Mr Waltis says that when he woke on the day following the incident on 8 November 2015 his lower back was “in agony”, and that there was some swelling midway up his back, and to the left side of my spine. In the Worker’s Injury Claim Form dated 12 July 2016 the description of injury includes reference to the lumbar spine with referred pain into the left leg. The reference to left leg pain is not in my view relevant to, and does not assist in, determination as to whether Mr Waltis sustained injury to the thoracic spine.
66.I accept that Mr Waltis was experiencing significant problems with his thoracic spine in 2017 and 2018 when he received treatment from Dr Tong and Mr Ratcliff, physiotherapist. This treatment is summarised above at [46]-[51]. The respondent’s insurer at the time, Allianz, was aware of these problems.
67.Dr Tong relied on information from a physiotherapist (who may or may not have been
Mr Ratcliff) and from Mr Waltis as collateral for his assessments, and understandably acknowledges his difficulty in commenting on the mechanism of injury as being causative of an injury to the thoracic spine due to the fact that he did not commence treatment until about one and a half years after the injury. Nevertheless, the applicant reported to Dr Tong ongoing back pain at the level of his thoracic spine with exertion. He also found evidence of Scheuermann’s disease in the lower thoracic and lumbar spine. He discussed the applicant’s case with senior colleagues, noting that Mr Waltis did not report any pain or back issues during his childhood. He raises the possibility that the Scheuermann’s disease could be a contributing factor to ongoing pain after an injury.68.Mr Ratcliff found that the applicant had marked stiffness throughout his thoracic spine and also marked spasm through erector spinae through the left hand side. He found tenderness on palpation through the thoracic spine, as expected. His treatment was aimed at trying to mobilise and decrease the muscle spasm. The treatment had some impact since its commencement. Mr Ratcliff was also to look at improving posture and trying to eliminate the spasm through erector spinae by increasing core muscle strength and general flexibility.
69.Dr Fairhall’s treatment of the applicant is summarised above at [52]-[54]. On 14 August 2019 Dr Fairhall found on examination that there was some paravertebral muscle spasm. He noted that investigations revealed anterior wedging of L2 and a focal kyphosis centred at L1/L2.
Dr Fairhall assessed the applicant as having had a significant injury affecting his upper lumbar spine. On examination on 14 March 2019 Dr Fairhall noted that Mr Waltis remained with marked paravertebral muscle spasm, and re-iterated that he had suffered a significant work-related injury. On 28 October 2019, forward station with paravertebral muscle spasm was noted, indicating sagittal malalignment and compensatory extensor dysfunction. In the last consultation with Dr Fairhall on 28 February 2020, surgery was discussed but not recommended.70.Dr Millons diagnoses pre-existing Scheuermann’s disease with wedging at L1, L2 and L3 and mechanical back pain as a result of the incident on 8 November 2015, possibly with some disruption at the thoracolumbar level. He assesses WPI as a result of injury to both the thoracic and lumbar spine.
71.In EMI (Australia) Ltd v Bes[25] the Court of Appeal indicated that if medical science was prepared to say that there was a possible connection between events, the incapacity and loss, then the court, after examining the lay evidence, may decide that it is probable. It is only when medical science denies that there is such a connection that a judge is not entitled to act on his own intuitive reasoning.
[25] [1970] 44 WCR 114.
72.In this case the respondent submits that the possibility of the applicant having suffered an injury to his thoracic spine raised by the medical evidence, notably that of Dr Tong who treated Mr Waltis in 2017, prevents him from proving on the balance of probabilities that he did suffer such an injury. Dr Millons also finds that there does appear to have been a substantial aggravation of the issues at the thoracolumbar level in the incident on 8 November 2015 when there appears to have developed some mechanical issues as
Mr Waltis was swinging a 28 lb [sic] hammer to free up some pins at the base of a crane tower. The doctor says that Mr Waltis appears to be suffering from continued aggravation of the problem. This finding is against the background of minor vertebral endplate irregularity in the lower thoracic spine, possibly related to Scheuermann’s disease, as revealed in the three region spine x-ray dated 9 November 2018 seen by Dr Millons and referred to earlier in his report.73.Dr Fairhall assesses a significant injury affecting the applicant’s upper lumbar spine.
74.Dr Hyde-Page’s findings and opinion are detailed at [59]-[63] above. In his first report the doctor says that the applicant appears to have aggravated underlying pre-existent asymptomatic Scheuermann’s disease of the lower thoracic and upper lumbar spine. He finds that aggravation of the underlying condition has never ceased and now appears to be permanent.
75.In his supplementary report Dr Hyde-Page concludes that the applicant does not have a thoracic spine condition that needs to be taken into account (emphasis added). He also says that the underlying Scheuermann’s disease involves the upper lumbar spine from L1 to L3 and only the T12 thoracic vertebra is involved, in a minimal way.
76.In my view having regard to the evidence of the applicant and the medical evidence as a whole, and in particular to the evidence of Dr Hyde-Page just referred to, Mr Waltis has discharged the onus on him to show that, on the balance of probabilities, he did suffer injury to his thoracic spine on 28 November 2015. That injury was the aggravation of the
pre-existing asymptomatic Scheuermann’s disease in the thoracic spine as well as the upper lumbar spine.77.The issue of permanent impairment sustained by the applicant as a result of injury to the thoracic spine and lumbar spine on 28 November 2015 will be referred to a Medical Assessor for assessment.
SUMMARY
78.The applicant suffered injury to the thoracic spine arising out of or in the course of his employment with the respondent on 28 November 2015.
79.Such injury was the aggravation of the pre-existing asymptomatic Scheuermann’s disease in the thoracic spine.
80.The matter is remitted to the President for referral to a Medical Assessor for assessment of WPI as a result of injury to the thoracic spine and lumbar spine on 28 November 2015.
81.The documents to he referred to the Medical Assessor are:
(a) ARD and attachments;
(b) Reply and attachments;
(c) AALD dated 19 July 2021 and attachments, and
(d) Certificate of Determination and Statement of Reasons.
82.The matter is not suitable for video assessment.
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