Compensation Court of New South Wales CITATION : Martin Yates v Kempsey Nursing Home Pty Ltd [2001] NSWCC 193 PARTIES : Martin Yates Kempsey Nursing Home Pty Ltd MATTER NUMBER(S) : 5096 of 2000 JUDGMENT OF: Geraghty J CATCHWORDS: Entitlements & Liability :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/06/2001,07/11/2001,09/11/2001 EX TEMPORE JUDGMENT DATE : 11/09/2001 FOR APPLICANT: Mr P Frame instructed by Somerville Laudry Lomax LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Hickey instructed by P W Turk & Associates JUDGMENT: The Claim and Its Basis 1. Martin Yates has claimed weekly benefits from 11 February 1996 to date and continuing - the date being the day on which he ceased as a registered nurse at the Kempsey Nursing Home. He has also claimed lump-sum compensation for neck impairment and loss of use of his right arm, payment of his medical expenses and an order as to interest. 2. The basis of his claim as against the Port Macquarie Hospital, the first respondent in these proceedings, was that he suffered an aggravation of a cervical condition as a result of working as a nurse in Port Macquarie from January to September 1995. However, his claim as against the first respondent was settled, I approved the commutation and made consequential orders. There remained the claim as against the second respondent. This was based on the nature and conditions of his employment for a brief period from 28 August 1995 to 11 February 1996. He said this period of work resulted in a permanent aggravation of his cervical condition. The Issues 3. Mr Greg Hickey, counsel, appeared for the second respondent. He informed me that the principal issue was the question of nexus or causation. Subsidiary questions were related to incapacity and its extent, the extent of impairment and losses, and the application of the provisions of s 68A since Yates had been injured in several previous incidents and had continued to experience at least intermittent symptoms. 4. Yates was injured in a surfing incident in 1992. He had come off his surfboard, fell on his head and injured his neck. It would seem that he recovered from this incident. However, when working in a psychiatric hospital in Queensland, he had again suffered an injury to his cervical spine, in October 1994. He had hit his head on a door jamb while chasing a psychiatrically disturbed patient and thereafter had continued to experience intermittent symptoms. 5. Yates was employed at Port Macquarie Hospital from January to September 1995, and driving from Kempsey to Port Macquarie each day, he suffered an aggravation of his symptoms. So he found work at Kempsey in a nursing home where, he said, he continued to have neck and right arm problems and to receive intermittent treatment. The question is whether the symptoms he was suffering at Kempsey Nursing Home and (though I do not need to decide this) the symptoms he suffered while driving to and from Port Macquarie, were a manifestation or a revelation of an underlying condition which had been caused somewhere else, or whether the work that he was performing at the nursing home in Kempsey materially aggravated his condition. The Submissions 6. Mr Frame, counsel for the applicant, submitted that the work Yates had been performing at Fyson Nursing Home in Kempsey, had been at times heavy work, and therefore had either aggravated a pre-existing disc lesion, or aggravated his degenerative condition. He submitted that this aggravation was caused by the nature and conditions of his employment and that I should pay particular attention to the opinion as to causation expressed by Dr Coyne (Exhibit G), Dr Lawson (Exhibit K) and Dr Berry (Exhibit H). 7. The respondent, on the other hand, submitted that the applicant bore the onus of proof and had not established any nexus. Mr Hickey submitted that the injury of 1992, and particularly the one in 1994, had caused the applicant's cervical condition; that he had continued thereafter to suffer intermittent pain; and that, while the applicant said his work with the second respondent had markedly increased, the symptoms he was suffering, he had made no contemporary complaint to his employer, even in his letter of resignation, and had provided no contemporary history of the relationship between his work with the second respondent and his marked worsening symptoms to any treating doctor. 8. Mr Hickey said that the first history of any work connection with the second respondent came with the claim forms in late 1997 (even though he had left the employ in February 1996), and that the first report to any doctor which could link his work with the second respondent with his deteriorating condition, was given to the Kempsey Hospital in April 1998. Mr Hickey said the critical period to be examined is the period from February to late June 1996, because it was towards the end of June that he began to seek treatment at Kempsey Hospital. The Applicant's Evidence 9. Mr Yates is a young man, born in 1970. He qualified as a nurse in 1991. He suffered a surfing accident in January 1992 near Laurieton and was treated at the Port Macquarie Base Hospital. He had two weeks off work and said that thereafter he had had no problems. In 1992, he laboured for a while on the M4 Freeway, and then worked as a tyre fitter in Lismore, handling bus and truck tyres as well as car tyres. In August 1993, he was employed as a psychiatric nurse at Greenslopes Rehabilitation Hospital for Veterans. In October 1994, he hit his head on the top of a window sash and suffered severe neck and right arm pain and headaches. He returned to normal duties. He said that he felt pretty good, suffering only slight stiffness for a number of months, though the pain in his right arm, he said, ceased. 10. Yates began work in mid-January 1995 at Port Macquarie, and worked there for about eight or nine months. This was a 10 bed voluntary psychiatric unit. He had to lift patients, but only rarely. He used to conduct one-to-one therapy, counselling, completing drugs round, and living in Kempsey about 40 minutes away. He said that he left the Port Macquarie job because he was suffering intermittent neck and right-arm pain. Driving aggravated his condition, though he also asserted that some activities at work increased the pain. On 28 August 1995, he began employment at the Kempsey Nursing Home and for a short period continued to do some shifts at Port Macquarie. At Kempsey he worked as a registered nurse in a dementia wing. He was engaged mostly on night duty, though not exclusively, and was rostered on seven or eight shifts every fortnight. He complained that he had to do quite a lot of lifting as well as moving furniture which was near fire doors. Several employees of the hospital, in their evidence, denied that there would be any blockage to the fire doors. While in principle this might have been true, and in general terms, throughout the week, it might have been true, there are few establishments where at least sometimes obstacles are not placed in the wrong positions. 11. In any event, Yates was treated by a chiropractor on 2 November 1995. He said he attended there because he had a lot of neck pain and his condition was deteriorating. He said that between August and the end of 1995, he was continually suffering aggravations. He suffered a lot of headaches and experienced tingling in his right arm. He was moody. His sleep was disturbed. He said he was suffering a lot of neck pain and lifting of patients definitely increased it. His partner at the time had a mother who was a physiotherapist or chiropractor and who was providing advice over the telephone. His partner was following this advice and providing some therapy. 12. Exhibit P is a undated letter from Bonnie Warburton, physiotherapist, the mother of his partner at the time. She simply states in a handwritten note: I reviewed Martin Yates on 15 November 1995 and again on 28 June 1997 regarding his neck condition. 13. Exhibit Q is a brief note from Richard Coade, a chiropractor, dated 24 May 1998. He stated that Yates attended his office on 2 November 1995 and on 26 June 1996. It would seem then during the relevant period, Yates received treatment from Coade on 2 November, and a review from his de facto mother-in-law on 15 November 1995. He worked on for the hospital till 11 February 1996, when, he said, he was feeling really rotten. He was depressed, anxious and in constant pain with headaches. He said he was unable to continue his duties. When asked why he ceased work he said, first of all, that it was because of his pain. 14. In cross-examination, Yates said that his pain was the principal cause of ceasing work. He also asserted that he was depressed and anxious, and finally, that the home where he was working was under audit and that professionally he could not stay. There were many staff dramas causing him headache and pain. When he left his position with the second respondent, he delivered a letter of resignation to the woman in charge of nursing. In it he said that he had noticed events occurring, both at work and socially, which had escalated to create poor staff morale at the home. He referred to the inability of management to deal with petty issues and stated that this had led him to the conclusion that he could no longer work at the home. He found that, as a registered nurse, he was hindered from fulfilling his duty of care to the residents by constant rumour-mongering and back-stabbing. He said that because of this constant friction and bickering, it was impossible to get on with his job. It is for this reason I wish to inform you of my decision to resign my position of casual registered nurse at Fyson Nursing Home. 15. No other reason was given for ceasing work. 16. Yates did not work between February and June 1996. He said he noticed no improvement in his symptoms during this period. He continued to have right hand tingling and daily neck problems, in addition to headaches. Ongoing exercises were supervised by his partner and her mother, and he received massages from his partner. 17. On 26 June 1996 (according to Exhibit Q), Yates attended the chiropractor Coade for consultation and treatment. From there, he went home and had a surf. He said the surf was small. He surfed with a friend Ian Bell. The next day he attended Kempsey Hospital because when he had woken in the morning, he could not move. He said he was usually stiff of a morning, but that on this particular day he was unable to move. Kempsey Hospital records are Exhibit 22 and Exhibit E. The emergency department clinical records of 27 June 1996 record a past history of whiplash injury in 1992 and a history that he had woken with pain in the shoulders. He had shoulder-blade and spine problems, and hot tingling arms. He also suffered headaches. He told the doctor that he had had a whiplash injury in 1991 (should be 1992), that he had been surfing the day before but without any injury, though the doctor noted that he had been stiff after the surfing. On the morning of 27 June, he had severe, posterior neck pain radiating into both shoulders. He had paraesthesia to the elbow, bilaterally, and no leg symptoms. He was treated by Dr Leo Smith in July 1996 who referred him to Dr Baker, and a course of treatment began to which I will come in due course. 18. No doctor was called to give oral evidence or, after being given full history which has emerged in the documents in this case, to provide an opinion as to causation. It seems that no doctor has been given a full history of complaints and of when they were made, nor have they received a full account of the histories provided by Yates, and when these histories were provided, or a full account of the treatment given over the years and when this treatment was delivered. This information seems to me have been critical for any responsible doctor to express a meaningful opinion as to causation, since the issue was complicated by an injury in 1992, in October 1994, and by work with Port Macquarie Hospital in driving to and from Kempsey. Therefore, it seems to me, the documents are important, since they will either confirm or reflect adversely on the evidence of the applicant who himself called no lay evidence to corroborate his memory of the unfolding history. 19. The claim forms which the applicant submitted are Exhibit 4 and Exhibit 5, and are dated November 1996 and April 1998. They simply claim that the accident or injury was caused by the nature and conditions of employment as a registered nurse with the Kempsey Nursing Home. Exhibit N is a series of radiological reports which are somewhat ambiguous, but overall it seems there can be no doubt that the applicant does have a problem with his cervical spine, and with radiating pain into his right arm. His incapacity for work does not seem to be a live issue, though the extent of it might be. The fact that he has been injured was also not a live issue, it seems to me, though the extent of his injuries might be, and the causation of them certainly was. 20. Exhibit C is the clinical notes from Greenslopes Rehabilitation Hospital. These record that the applicant had knocked his head on a window-sill and had suffered whiplash injury. They record also that he had right-sided neck and shoulder pain with headaches, but that he was not knocked unconscious. The neck brace did not seem to improve his condition. X-rays of the cervical area and the shoulder were taken. 21. I have already referred to the reports of Richard Coade (Exhibit Q) and of Bonnie Warburton (Exhibit B) which deal with treatment in November 1995. 22. The next documented treatment was at Kempsey Hospital in late June 1996. They are Exhibit E and Exhibit 22. An x-ray was exposed on 28 June 1996 showing some minor scoliosis concave to the left, no focal disc narrowing or posterior malalignment, a prominent transverse process at C7 on both sides suggestive of a small cervical rib. There was no abnormal paravertebral soft tissue swelling, no fracture or dislocation. The invertebral foramina appeared normal, and the facet joint showed no focal abnormality. A CAT scan was exposed on 10 July 1996 and the reports are contained in the records. 5 July 1996 there was also a cervical CT scan; again the reports are contained. 23. Yates came under the care of Dr Smith. His reports and letters of referral are Exhibit 6. On 27 July 1996, he referred his patient to Dr Fakir, a orthopaedic surgeon. In his letter of referral Dr Smith referred to a surfing injury in 1992 and reported that his patient had neck pain and probable weakness of the right finger grip. He said that Yates wanted to discuss sensible lifestyle and work limitations, as well as the likelihood of success of surgical interference. On 4 March 1997, Dr Smith referred his patient to Dr Asken, with a brief referral note. Dr Smith told the specialist that Yates had had a neck problem which followed a surfing incident in 1992 and that since then he had been frustrated with his condition. In his search for answers he came under the care of a physiotherapist. 24. In a letter of October 1997, Dr Smith stated that an MRI had shown disc protrusion and degeneration at two levels in the cervical area, though there was no nerve-root compression. He said it was a reasonable assumption that these discs had been damaged in either of his two previous injuries, that at the very least the 1994 accident had exacerbated any previous disc injury, though, he said, it was just as likely that the 1994 accident had caused the disc injury. Then in October 1997, he referred his patient to Dr Ether, telling him that Yates had had an injury to his neck in 1992 and 1994, and that had continued to get posterior neck pain into the right shoulder, with paraesthesia in the middle finger of the right hand. Here we have the general practitioner treating and referring his patient to specialists well after his patient had ceased work with the second respondent. 25. Then Dr Leo Smith produced a report for the insurance company dated 22 July 1998. He stated that his patient first presented to him on 2 July 1996, two years before. He said that on 15 July 1996, Yates had informed him that he had struck his forehead against a window pane while chasing a patient at work in late 1994. He told me in later consultations that he blamed the exacerbation on continuing to work as a nurse at Fyson Nursing Home. I have no way of assessing that statement as to its veracity. 26. The question arises as to when it was that he told Dr Smith in those later consultations about the exacerbations at work with the second respondent. His report (at the end) refers to a consultation on 3 June 1998. Martin stated that the pain was aggravated by 'continuing to work which culminated in a collapse on 28 June 1996' 27. This cannot be correct. The applicant had not worked for the second respondent beyond 11 February 1996, though there had been somewhat of a collapse in late June 1996. The doctor remarked that he was uncertain as to his evidence about this, but that it could have been when he was doing shifts that he noted his neck was becoming worse. 28. Exhibit 7 is a report of Dr Baker, an orthopaedic surgeon, who again recorded a history in September 1996 of an injury off a surfboard in 1992 and after which Yates had continued neck exercises with minimal pain. He recorded that there had been intermittent episodes of neck stiffness and spasms which occurred unpredictably. The report then recorded that on or about 26 June 1996, Yates had woken up with increased neck soreness and stiffness. The report concluded that Dr Baker had had lengthy discussion with Yates, answering many of his questions regarding work and lifestyle limitations. 29. Yates sought treatment from a manipulative and sports physiotherapist, Jane Buckley, who he began to consult in February 1997. He provided to her a history of his neck injury in October 1994 which he described as a whiplash-style injury. She recorded that he had had a severe recurrence in June 1996, and that at this stage he had not been working for six or seven months as a registered nurse. She observed that most activities appear to aggravate his condition. Her opinion was that he had suffered a deterioration from soft-tissue injury sustained in 1994. 30. Dr Geoffrey Asken treated the applicant in June 1997. His report is Exhibit 8. He too received a history of the surfboard incident in January 1992, and recorded that he had had some tingling and weakness for the first few seconds but that this had settled. His pain had resolved and he had been pretty good up until June last year when he woke with quite severe neck pain. Dr Asken recorded that Yates was able to mow the lawn, and that he had attempted at getting back to surfing. He said he had not worked as a registered nurse for a year, because of neck pain. Asken reviewed his patient in October 1997 and saw a cervical MRI scan which demonstrated some degeneration at two levels. Yates told the doctor on that occasion that he had also injured his neck in 1994, that he was certain there was some documentation at Greenslopes Hospital where he was working at the time. Dr Asken remarked that his patient was considering a WorkCover claim for his current symptoms based on the 1994 injury, and observed: I find it a little unusual that at his first interview that he did not tell me about that episode let alone the fact that it was investigated and treated. 31. The physiotherapist Paul Eckman began his treatment in August 1997. His report is Exhibit 9. He recorded a history of neck injury while surfing in 1992, and a re-injury in 1994. Yates reported to Mr Eckman that initially he had intermittent, but now constant neck and right arm pain. 32. Dr Terry Ether examined the applicant in October 1997 (Exhibit 11). He recorded that for about a year (that is a year before October 1997), the applicant had had tingling in the middle three digits of his right hand and that he used to drop things. The tingling increased with arm use. The doctor thought he might have some right-sided carpal tunnel syndrome, as well as some significant musculoskeletal neck pain. 33. Wayne Somerville treated the applicant as a psychologist from January 1998. He recorded a history that Yates had injured his neck in 1992, and again in 1994, and that the 1994 injury had resulted in ongoing chronic pain and disability. He said that he has never been completely free of discomfort since he developed persistent neck pain some time after 1994 accident. 34. He also told Mr Somerville that he had often felt depressed since the 1994 accident. 35. Treatment by McCombie began in June 1998 (Exhibit 20). Again, this was psychological treatment, though Mr McCombie recorded no history of physical injury. 36. Dr McGilvray began treating the applicant on 6 May 1998 (Exhibit 9). He too took a history of the incident in January 1992, and October 1994. The history recorded as to 1994 states that the neck had slowly deteriorated, that then in February 1996, it got a lot worse. The month in 1996 in the notes is crossed out, and replaced by February. The month crossed out is June. There is no doubt that in June 1996, Yates's neck did get a lot worse. The applicant went to the hospital. There is no evidence that in February 1996, the applicant made any complaint or sought any treatment. 37. In his report (Exhibit 12), Dr Prowse, a rheumatologist physician, records a history of injury in 1992 (after which the symptoms settled) and a second work-related injury at a psychiatric unit, when the applicant bumped his head on top of a window sash and as a result of which, he had developed a lot of neck pain. This was intermittent although his pain has become relatively chronic and persistent since 1996 and he has not worked since that time. 38. Dr Lawson examined the applicant in June 1998 (Exhibit K). He recorded that after the incident in January 1992, Yates had gradually recovered, but that after the incident in October 1994, there had been an immediate onset of headache and neck pain, particularly affecting the right side of his neck. He recorded that from 1995, Yates began to experience frequent right-sided neck pain, with pain down the back of the head affecting his right occipital area, and that this pain increased in severity over two years or so. He remarked that at this stage, Yates had been working at Port Macquarie Hospital. He then recorded that Yates moved to Kempsey Nursing Home where he experienced further episodes of neck pain and headache. He was performing heavy work, often involving lifting and straining with elderly dementia patients. 39. Dr Lawson concluded that Yates had sustained a series of significant injuries affecting his cervical spine, that there had been two work-related injuries, as well as the injury in the surfing incident of January 1992. It is a puzzle to identify those two work-related incidents. It is certain that one of them was in October 1994, but the doctor does not state whether the Port Macquarie work or the Kempsey work was the second work-related incident, though it seems to me, reading between the lines, that it was the Port Macquarie Hospital work to which he gives the greater emphasis. 40. The applicant's case was also supported by a report of Dr Berry (Exhibit H) and Dr Coyne (Exhibit G), whereas the respondent's case was further supported by reports of Dr Connelley (Exhibit 13) and Dr Bornstein (Exhibit 14). 41. Mr Yates continued to struggle with profoundly serious problems which go back to his early childhood. There is evidence of this struggle in the psychiatric and psychological reports before me. These profound problems touch his family, his own emotional life, as well his social life and his employment. This claim, on one level, is an easy and simple problem to resolve. It is merely a question of causation, and to solve that, I am required to apply the ordinary principles of common sense. 42. The applicant claims an injury to his neck and right arm, and admits freely that he had an accident in the surf in 1992, and again at Greenslopes in 1994, and alleges that Port Macquarie Hospital aggravated his condition, particularly driving to and from work, and that Kempsey Nursing Home also had seriously aggravated his condition, particularly when he was doing heavy work. From one point of view, this is a simple question, but on another level, this claim could have serious repercussions. Yates is seriously depressed, isolated, and at stages of his life has entertained suicidal ideation. He has had, and continues to suffer, fractured relationship with his mother, his sister and his de facto partner who has since married. Failure to accede in this claim (simple to me though important to him) could be interpreted by him as yet another rejection. He has had, on the evidence before me, an uncommonly heavy load to carry. It seems to me that he needs to be treated carefully. 43. Whoever advised him to bring this action and to pursue it to the end, will need to be aware of his vulnerability. This court can do no more than listen carefully, attentively to the evidence, consider it seriously, decide the questions in all good conscience and as best as it can, being fair, as far as possible, to both parties and, if appropriate in the light of evidence tendered, put people on notice as to possible repercussions of any decision. 44. I have concluded that the condition was not permanently aggravated by any work with the second respondent. It might have been that from time to time, while working there, there was a temporary aggravation which required some massage, but he was not injured while working for the second respondent. He worked there only for a short period, and the work in general terms as a registered nurse, was not heavy. He had to do a lot of paperwork, pushing of a trolley with prescribed medication and supervision of assistance. From time to time, he may have had to manoeuvre a patient, particularly on night duty, but it was not in general terms heavy, demanding work. 45. The applicant had previous problems with an injury and he had had at least intermittent symptoms before August 1995. No incident of an injury was recorded while in the employ of the second respondent. In the applicant's letter of resignation, no mention was made of any neck or arm problem, and whatever about his reluctance to complain while working there, his explanation as to why he failed to complain does not encompass the letter of resignation. The applicant had no recorded treatment between November 1995 and June 1996, though there were two recorded treatment sessions in November 1995. He made no complaint of any problems to any of his fellow employees, or to anyone in authority or supervisory capacity, apart from to his de facto wife who was working at the hospital also and who did not attend to given evidence. 46. The applicant was treated at Kempsey Hospital on 27 June 1996, over four months after he had finished employment with the second respondent, and the notes do not record any complaint that work at the Kempsey Nursing Home had caused the problems for which he was being treated at the hospital. Histories provided to treating doctors do not in general terms refer to any complaint. When the applicant was confronted with this, he simply kept saying I imagined I told them. He said this over and over again, I imagined I told them. I interpreted this as meaning he did not remember. He said that he had experienced serious deterioration while in the employ of the second respondent. If that be so, on his prior form, he would have sought treatment. If it were serious, when given the opportunity by the treating orthopaedic specialist and general practitioners, he would have informed them of that deterioration and of the work he was doing. 47. The problem for determination is a question of nexus or causation which is to be solved by applying the dictates of common sense. The applicant probably did have some problems from time to time while he was nursing for the second respondent, but, in my opinion, this was merely a manifestation of his underlying problem; a revelation of the injury which he had suffered, and not causative. On the evidence before me, it seems obvious that the applicant's condition was caused by the incident in October 1994, since he had symptoms immediately thereafter, and continued to have intermittent symptoms even to the present time. 48. I therefore make an award in favour of the respondent, and I make no order as to costs. Mr P Frame instructed by Somerville Laudry Lomax appeared for the applicant. Mr G Hickey instructed by P W Turk & Associates appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.