Yacoub v MJS Quality Constructions Pty Ltd
[2021] NSWPIC 274
•4 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Yacoub v MJS Quality Constructions Pty Ltd [2021] NSWPIC 274 |
| APPLICANT: | Fadi Yacoub |
| RESPONDENT: | MJS Quality Constructions Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 4 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Consequential condition; applicant seeks permanent impairment compensation for alleged lumbar spine condition brought about by altered gait following accepted serious laceration to right leg in the course of employment with the respondent; right lower extremity and primary psychological injury admitted; causation; whether lumbar spine condition causally linked to the leg injury: Kooragang Cement Pty Ltd v Bates followed; nature of consequential conditions discussed; Kumar v Royal Comfort Bedding Pty Ltd followed; Moon v Conmah Pty Ltd (Moon) and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan discussed; Held- the evidence establishes on the balance of probabilities that the lumbar spine condition was caused by the right leg injury; that finding was supported by both IME and treating medical opinion; although the applicant had previously suffered back issues, his treatment for those problems consisted of a visit in 2009 where he was prescribed analgesic medication and one further visit in 2015 when he complained of back pain for two months preceding the consultation; matter remitted to the President for referral to Medical Assessor for assessment of permanent impairment arising from right lower extremity (leg), scarring, primary psychological injury and consequential condition to the lumbar spine. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury in the course of his employment with the respondent on 9 March 2016 to his right lower extremity and by way of primary psychological injury. 2. As a result of the injury to the right lower extremity referred to in (1) above, the applicant suffered a consequential condition to his lumbar spine. 3. The matter is remitted to the President for referral to a Medical Assessor (MA) for determination of the permanent impairment arising from the following: Date of injury: 9 March 2016 Body systems referred: Right lower extremity (leg), scarring (TEMSKI), psychological injury, lumbar spine (consequential condition) Method of assessment: Whole person impairment. 4. The documents to be referred to the MA to assist with the determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments; (d) applicant’s Application to Admit Late Documents dated 20 July 2021 and attachments, and (e) respondent’s Application to Admit Late Documents dated |
STATEMENT OF REASONS
BACKGROUND
On 9 March 2016, Fadi Yacoub (the applicant) was working in the course of his employment with MJS Quality Constructions Pty Ltd (the respondent) as a formwork carpenter when he suffered a severe laceration to his right thigh caused by a circular saw. The injury to the applicant required him to be conveyed immediately by ambulance to hospital for the repair of the wound, which the clinical record discloses was a laceration so deep that it exposed the bone.
There is no issue the applicant suffered both an injury to his right lower extremity together with scarring and a primary psychological injury. Each of those injuries will be referred to a Medical Assessor (MA) for assessment of the applicant’s whole person impairment.
The applicant also alleges that as a result of his injury he suffered a consequential condition to his lumbar spine. The respondent denies the consequential condition and alleges the applicant’s lumbar spine symptoms are not causally related to the injury at issue but rather were caused by a chronic, pre-existing lumbar back condition.
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is whether the accepted injury on 9 March 2016 caused a consequential condition to the applicant’s lumbar spine.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 27 July 2021. I am satisfied the parties to the dispute are aware of the effects of the representations made in the matter. I have used my best endeavours to encourage the parties to reach a resolution, however, following a period of conciliation on the day of the hearing, they have been unable to do so.
At the hearing, Mr T Baker of counsel appeared for the applicant, instructed by Mr M Bell, solicitor. Mr A Combe of counsel instructed by Ms L Rich solicitor appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) the applicant’s Application to Admit Late Documents (AALD) and attached documents dated 20 July 2021, and
(d) respondent’s AALD and attached documents dated 20 July 2021.
Oral evidence
There was no oral evidence caused at the hearing.
FINDINGS AND REASONS
The consequential condition to the lumbar spine
The applicant bears the onus of proving the accepted workplace injury on 9 March 2016 caused a consequential condition in his lumbar spine. In determining the cause of the consequential condition, the Commission must apply a common-sense test of causation. In the workers compensation context, the appropriate test of causation was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where His Honour said:
“The result of the cases is that each case where causation is an issue in a worker’s 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 cause by the use of the phrase ‘results from’ is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain.”
It is important at the outset to establish the relevant test for determining the presence of a consequential condition. This is particularly so where the respondent, as in this matter, seeks to rely at least in part on an absence of established pathology in the applicant’s lumbar spine for a finding that no consequential condition has occurred.
In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At [35] and following, Roche DP stated:
“[35] By asking if Mr Kumar has suffered a section 4 injury to his right shoulder, the arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceio09ded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a section 4 injury to his right shoulder.”
The Deputy President referred to Kooragang then noted, where a consequential condition is claimed, it is not necessary for an applicant to establish that they have significant pathological change in the body part in issue, only that the condition complained of was caused by the work injury.
The authorities such as Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon) and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) make it clear that it is unnecessary for a worker alleging a consequential condition to establish that it is an “injury”, as that term is defined within section 4 of the Workers Compensation Act 1987 (the 1987 Act).
In this matter, the respondent disputed the presence of a consequential condition to the lumbar spine on two bases. The first was the opinion of Dr Powell, Independent Medical Examiner (IME) to the effect that a change in gait brought about by an injury such as that suffered by the applicant would not be sufficient to cause the back symptoms complained of by him. The respondent also submitted the applicant had not discharged his onus of proof to establish the causal link between the accepted leg injury and his back problems, particularly in light of pre-existing problems with his lumbar spine stretching back to approximately 2009.
For his part, the applicant alleges the lumbar spine condition was brought about by overcompensating through a substantial limp which he has suffered since the leg injury in 2016.
In support of his case, the applicant relies upon each of the views of the treating surgeon Dr Rosenberg, IME Dr Dixon, treating general practitioner Dr Obeid and IME Dr Assem. For its part, the respondent says that because those doctors were not fully appraised of the applicant’s history of pre-existing lower back problems, their opinions should not be preferred.
The respondent sought to attack the applicant’s case on the basis that he had not provided a full and accurate history to the various doctors in the matter. It is noteworthy, in my opinion, that the respondent’s IME Dr Powell described the applicant as someone who presented without exaggeration and who did not seek to embellish his symptoms. Moreover, the applicant’s history to the doctors appears, in my opinion, to be consistent.
The matters which the applicant appears to have not directly traversed in the histories given to the various doctors include a visit in 2009 to his general practitioner when, at the age of approximately 15 years, he had left school and began working in a physical occupation and complained of back pain over approximately one month before consulting his doctor. He was prescribed analgesics on that occasion. There was no indication of any further treatment provided to the applicant regarding his back until 10 November 2015, when he again attended his general practitioner. At that time, the GP clinical records record the applicant saying he had chronic back pain for approximately two years. There is no suggestion the applicant had any time away from work as a result of any back condition before the injury at issue.
For the respondent, Mr Combe submitted these entries would lead the Commission to have doubts on the balance of probabilities that the low back pain which the applicant now suffers relates to the right thigh injury.
For his part, Mr Baker in reply noted the applicant relies on the totality of the medical evidence and that the prior visits to the applicant’s general practitioner and/or chiropractor did not lead to any ongoing treatment. Moreover, Mr Baker noted the applicant’s employment as a formwork carpenter was heavy and he was working in that employment until the frank injury in March 2016.
A common theme throughout the pre-injury references to the applicant’s low back pain was his carrying out repetitive lifting and heavy physical work in the course of his employment. There is no issue he had undertaken heavy work from his mid-teens. The respondent alleges the applicant was suffering from chronic back pain over the course of many years ahead of the injury in issue, such pain being linked to his duties as a formwork carpenter and submits that condition indicates the applicant’s current back problems are not caused by the injury at issue.
I do not accept that proposition. Although there is a GP reference to “chronic” low back pain, it must be noted the applicant had no substantive treatment for back pain before the injury at issue save for the prescription of analgesic medication in 2009. The usual caution with regards to clinical records of treating practitioners must be applied. This is not a matter where a worker has a sustained history of back problems which interfered with his ability to work or to lead a normal life. Here are two (two!) entries across his entire clinical history, and those six years apart. In my opinion, that is in no way indicative of substantive pre-existing back problems sufficient to account for the symptoms which the applicant developed in the years after the injury at issue, particularly when there is no complaint of back problems between the 2016 injury and approximately 2019.
The respondent also seeks to rely on that absence of complaint of low back pain by the applicant from 2016 and 2019 as evidence of the altered gait not causing his current symptoms, consistent with the views of its IME Dr Powell. That three-year period was one when the applicant was not working. In my view, the absence of complaint between injury and 2019 is understandable in circumstances where the applicant is both focusing on the severe injury to his right leg and also because he is no longer carrying out repetitive heavy lifting in the course of his employment. This is not a matter where the applicant alleges his altered gait (which is not in issue) suddenly caused his back pain. Rather, he alleges the manner in which he walks has caused those back problems over a lengthy period of time since the serious leg injury in 2016.
The respondent submitted that, absent the presence of pathological change, the Commission would need to take care in accepting the applicant’s complaints of back pain given the previous history. The difficulty with that submission is the applicant was carrying out heavy employment until the date of injury, and moreover, that each of the doctors takes a history from the applicant of altered gait and overcompensation on the left leg which after several years has given rise to low back pain.
Dr Powell, IME for the respondent, indicated that in the ordinary course of events, the alteration of gait in a healthy young man would not give rise to lower back symptoms. That proposition was broadly accepted by each of Dr Rosenberg and Dr Dixon, whom both stated that altered gait would not normally cause an injury to the lumbar spine in a young adult, but because of the severe nature of the applicant’s leg injury, he has profound weakness of his right thigh which has caused not only an altered gait but a tendency to lurch and have to self-correct his centre of gravity, which in those doctors’ view leads to straining of his lower back on ambulation.
Dr Rosenberg, who has treated the applicant over several years, states the spinal symptoms are caused by his marked limping as a result of the accepted workplace injury. He “suspects” the applicant is suffering from some overload of a lumbar disc due to the altered gait pattern, however, Dr Rosenberg appropriately conceded that the radiological evidence does not reveal such a disc problem.
In any event, the absence of a pathological change in the applicant is not, consistent with the authorities such as Kumar, Moon and Brennan fatal to the applicant’s claim for a consequential condition. Rather, it is necessary for the Commission to be satisfied on the balance of probabilities, adopting a common-sense approach, that the applicant’s claimed symptoms in his lower back is causally connected to the accepted leg injury.
In this matter, I am satisfied on the balance of probabilities that there is such a causal link. Whilst the treating practitioners may not have had the evidence of the applicant’s prior GP visits concerning his lower back, those consultations were intermittent and did not lead to a lengthy regimen of treatment. Rather, as already indicated, the applicant was able to attend to his heavy work until such time as he suffered his frank leg injury.
On balance, I accept the applicant as a witness of truth, which accords with the consistency of history as provided to all of the doctors and with the opinion of him as set out by the respondent’s own IME Dr Powell. There can be no issue the applicant suffered a severe, frank workplace injury. The suggestion by the respondent that the symptoms from which he now suffers are linked to his pre-existing problems is not, in my view, borne out on the balance of the medical evidence.
It is apparent from the medical evidence that after his low back symptoms began in the years after the injury at issue, the applicant not only suffered pain in that region but also referred pain into his left leg, consistent with radiculopathy. Although there is no radiological basis for that finding of radiculopathy, I reiterate it is not necessary for such pathological change to be present in order for the consequential condition to be established.
The applicant’s general practitioner, who he had consulted over many years obviously had the benefit of the history of prior consultations concerning the applicant’s lower back. At [A138], the general practitioner noted on 22 July 2019 that the applicant’s back pain is likely secondary to carrying all of his weight on one side as a result of overcompensating following the injury. That opinion is broadly consistent with the views of Dr Assem, Dr Rosenberg and Dr Dixon.
In my view, there is nothing unusual or sinister about someone working in the heavy occupation of formwork carpenter having occasional visits to medical practitioners regarding their back. It is also apparent, based upon the complaints of the applicant to the various medical practitioners that his lumbar spine symptoms which developed in or about 2019 varied from those which he had previously suffered in both intensity and in symptomology, particularly in relation to the involvement of the left leg. The prior complaints were intermittent, did not involve radiation into the left leg and required treatment only by way of analgesics many years before the incident at issue.
Accordingly, on the balance of probabilities adopting the approach set out in Kooragang, I am satisfied on the balance of probabilities that the applicant suffered a consequential condition as a result of the accepted workplace injury to his right leg on 9 March 2016.
SUMMARY
For the above reasons, the Commission will make the findings and orders set forth on page 1 of the Certificate of Determination.
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