In the recent case of Govindan v Capital Safety Group (Australia) Pty Limited [2022] NSWPIC 588, Member Cameron Burge of the Personal Injury Commission (PIC) held that a worker did not suffer a claimed consequential cervical spine condition and gastrointestinal condition, as a result of not having recorded sufficient history and medical evidence.
The worker is therefore only entitled to claim compensation with respect to his accepted injury to the left shoulder, and not the claimed consequential conditions, and thus impacting upon the whole person impairment threshold overall.
This decision highlights the importance of contemporaneous treating medical evidence and the histories obtained by IMEs in recording a detailed history of complaints to establish causation of claimed consequential conditions.
Background
On 10 May 2011, a worker suffered an injury to his left shoulder as a result of lifting a basket of metal window cleaner parts and construction harnesses, whilst in the course of his employment with the respondent employer.
Liability for the injury to the left upper extremity was accepted, and on 27 November 2012, a Certificate of Determination (COD) was issued by the Workers Compensation Commission (WCC) ordering the respondent pay the worker lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a 9% permanent impairment to the right upper extremity.
The worker alleged that as a result of the injury to his left shoulder, he suffered consequential conditions to his right shoulder and cervical spine through overuse and overreliance on the right shoulder. He also alleged that as a result of taking pain killing medication, he has suffered a consequential condition to his gastrointestinal tract.
The respondent disputed liability for the alleged consequential conditions.
Outcome
Right upper extremity (shoulder)
The Member found that it was apparent from the treating medical material that the worker began complaining of problems with his right shoulder over the course of several years. The radiological evidence revealed pathological change in the right shoulder, including serious tears demonstrated as early as 13 March 2014.
The Member agreed that the worker suffered a consequential right shoulder condition caused by overuse as a result of the injury to the left shoulder and this was consistent with the treating clinical picture of the onset of severe right shoulder pathology.
Cervical spine
The Member found that there is a paucity of evidence surrounding the onset of the worker’s cervical spine symptoms, and the medical records of the worker’s GP revealed occasional and sporadic complaints of neck pain after the injury. However, there was no contemporaneous evidence demonstrating this neck pain was brought about as a consequence of the left shoulder injury.
It was noted the worker bears the onus of proving that the alleged consequential condition in the neck came about as a result of the left shoulder injury. It was the Member’s view that the worker’s evidence does not provide a causal basis for finding that this is the case, and there was an award for the respondent on the claim for the consequential condition to the cervical spine.
Gastrointestinal system
The Member noted the worker’s IME, Dr Berry, states that the worker’s gastrointestinal condition was brought about by his use of painkillers following the left shoulder injury.
However, due to the lack of analysis, it was the Member’s view that there is no sound basis to support Dr Berry’s finding. Instead, the Member preferred the views of Dr Truskett, IME for the respondent. The Member noted Dr Truskett took a significant history from the worker as to the painkillers which he had taken.
The Member noted that absent an analysis of the type of painkillers taken, the dosage and the duration, there is no sufficient factual basis to support Dr Berry’s contention that any gastrointestinal intestinal symptoms suffered by the worker related to his work-related injury.
Conclusion
The decision in Govindan v Capital Safety Group (Australia) Pty Limited [2022] NSWPIC 588 highlights the importance of:
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Ensuring there is a clear and concise explanation as to any claimed consequential conditions. The sooner these are addressed, the better it is to manage these in the long term, including whether to accept or decline the consequential conditions.
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Ensuring the IMEs have recorded a detailed and concise history of the worker’s complaints, particularly in relation to any claimed consequential conditions, and how this is related to the workplace injury.
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Ensuring up-to-date treating medical evidence is obtained to ascertain the worker’s symptomology and complaints. This is crucial in determining a timeline of complaints and whether the worker can establish that their consequential conditions have resulted from the workplace injury.
- The overall importance of establishing whether a worker has suffered a consequential condition is critical when it comes to their whole person impairment threshold later on.
Post written by Hicksons Partner, Naomi Tancred, and Solicitor, Ninorta Gabriel.