Amirro v Cordina Chicken Farms Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Amirro v Cordina Chicken Farms Pty Ltd [2023] NSWPIC 544
APPLICANT:	Akech Amirro
RESPONDENT:	Cordina Chicken Farms Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	16 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation to multiple body parts; right upper extremity injury admitted; balance of claimed body systems disputed; the applicant alleges the nature and conditions of her employment caused a series of micro-traumata to her cervical spine, lumbar spine, left knee and left foot and that, despite specific later incidents which aggravated that trauma, it was her work duties generally which caused her injuries; in the alternative, the applicant claims the nature and conditions of her employment caused aggravation to underlying pathology of those body systems; Held – the evidence discloses the applicant complained of symptoms to the allegedly affected body systems over the course of many years to her GP and treating surgeon, predating any specific injury to those affected body systems; the views of the applicant’s treating surgeon, who has treated her over many years, are persuasive in establishing the nature and conditions of the applicant’s employment were causative of injury to the disputed body systems; his views are supported by contemporaneous complaint, investigation and clinical records; all claimed body systems are to be referred for medical assessment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her right upper extremity, cervical spine, lumbar spine and left lower extremity (knee and foot) in the course of her employment with the respondent, with a deemed date of injury of 17 October 2018. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of injury: 17 October 2018. (deemed) 3. Body systems referred: Right upper extremity (shoulder), cervical spine, lumbar spine, left lower extremity (knee and foot). 4. Method of assessment: whole person impairment 5. Documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) Certificate of Determination and Statement of Reasons, (b) Application to Resolve the Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Akech Amirro, brings proceedings for permanent impairment compensation to her right shoulder, neck, lower back, left knee and left foot said to have arisen as a result of injury suffered in the course of her employment with the respondent, Cordina Chicken Farms Pty Ltd from 2008 to the alleged deemed date of injury of 17 October 2018.
The applicant alleges the nature and conditions of her employment caused a series of micro-traumata to the affected body parts, leading to injury. Alternatively, the applicant claims the nature and conditions of her employment led to an aggravation of preexisting pathology in the allegedly affected body parts.
By Dispute Notice dated 8 February 2022, the respondent accepted liability for the applicant’s right shoulder injury, but disputed injury to the cervical spine, lumbar spine, left knee and left foot on the grounds they did not arise out of employment as required by s 4 of the Workers’ Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the only issue in dispute is whether the applicant suffered injury to the cervical spine, lumbar spine, left knee and left foot in the course of her employment with the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

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.
The parties attended a hearing on 15 August 2023 and 29 August 2023. At the hearing, the applicant was represented by Ms Grotte of counsel instructed by Ms Basal. The respondent was represented by Mr Doak of counsel instructed by Ms Brown.

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, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered injury to the disputed body systems.

The applicant brings her case on two bases, namely:
i. that she suffered a series of micro-traumata arising from the nature and conditions of her duties with the respondent, or
ii. she suffered aggravations to underlying pathology in her cervical spine, lumbar spine, left knee and left foot as a result of the nature and conditions of her employment.
The applicant submits the circumstances of this matter are consistent with those set out in the Court of Appeal decision of Ozcan v MacArthur Disability Services Limited [2021] NSWCA 56 (12 April 2021) (Ozcan).
In that matter, the applicant had a work accident in which she suffered injuries to her lumbar spine, thoracic spine and right shoulder. In later work accidents, she suffered further injuries to her lumbar spine and thoracic spine and claimed permanent impairment compensation against her employer. The Court of Appeal held the applicant was entitled to have the whole person impairment in respect of her right shoulder injury assessed together with the total whole person impairment found in respect of her spinal injuries. The Court held that if the later spinal injuries resulted from those suffered on the first date of injury (being the same date the right shoulder injury also arose), then all of the injuries “resulted from” and “arose out of” the first incident and should therefore be treated as one injury.
The Court held such a situation falls within the second category of injury set out in State Government Insurance Commission v Oakley (1990) 10MVR570 (Oakley). In that matter, Malcolm J set out the relevant categories of injury where cases involve subsequent injuries. The three categories established by his Honour are:
“1.      Where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
2.       Where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
3.       Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first.”
In this matter, the applicant submits that although there were specific injurious incidents in 2015 and 2018, these can in fact be said to arise as a result of injuries brought about by the nature and conditions of her employment.
For its part, the respondent relies on the report of its independent medical examiner (IME) Dr Powell, who accepts the right shoulder injury, however, opines that the condition of the applicant’s cervical spine, lumbar spine, left knee and left foot are attributable to degenerative changes which were not brought about as a result of her employment with the respondent.
The applicant commenced employment with the respondent in 2008, when aged 38. The nature and conditions of her duties are not disputed by any lay evidence, however, the manner in which those duties were addressed and dealt with by the respective medical experts was the subject of the parties’ submissions. It is therefore important to set the duties out in a somewhat fulsome manner.
In her statement, the applicant set out her duties as follows:
“7.      On or about 20 October 2008, I commenced employment with Cordina Chicken Farms Pty Ltd. I was employed as a picker packer on a full-time basis working 38 hours per week with additional overtime when available. My gross average weekly earnings were $600.92.
8.       In my role, I was responsible for:
(a)Picking up chickens of varying sizes;
(b)Packing chickens into tubs;
(c)Putting tubs on combiner;
(d)General duties, incidental to picking and packing chickens.
9.        Throughout the course of my employment, I was required to perform repetitive and strenuous movements for prolonged periods of time. As a result, I developed injuries to my lower back, left knee, left foot, which includes my left ankle, cervical spine and right shoulder deemed to have occurred on 20 April 2020 (date of incapacity for all injuries). I had been seeing my treating practitioners throughout the entire period of my employment; however, it was not until 20 April 2020 that I was completely unable to undertake my duties due to all the above injuries from the nature and conditions of my employment. The incidents that occurred on 23 October 2015 and 17 October 2018 were both incidents that included injuries that I had previously already complained of due to my ongoing gradual symptoms. The two incidents that occurred only aggravated my condition and symptoms further. The details of my injuries and subsequent treatment are provided below.
10.      For my role, I was required to work on the production line. I would pick chickens from stacks and place them in tubs to put on the conveyor belt. These stacks of chickens were either located above shoulder height or to my side at waist height. I would have to reach above shoulder height to collect the chicken and place it in the tub until the tub was full. Alternatively, I would have to twist my body to the side and bend slightly to pick up the chicken and then place it in the tub.
11.     Once the tub was filled with chickens, I would then place it on the conveyor belt. When these tubs were full, they would weigh approximately 12 kg. These movements required repetitive lifting, twisting, lifting and reaching which all placed a strain on my neck, lower back, right shoulder.
12.      In addition, I would be standing in the same spot for the majority of my eight-hour shift, with only two 30-minute breaks. I also worked on hard concrete floors, that placed a significant strain on my legs. The twisting motion and standing for prolonged periods of time placed a strain on my entire body.”
The nature of the applicant’s duties is also confirmed by a work site assessment carried out for the respondent on 17 November 2015 by Interact Injury Management. The assessment noted the applicant’s pre-injury tasks involved “packing tubs of chicken weighing between 1 and 3 kg. Task involves picking up a tub and placing on the bench, lining with paper and reaching and packing approximately eight chickens before pushing the tub onto the conveyor belt.” In assessing this aspect of the applicant’s work, the report noted the following critical physical demands were part of the applicant’s employment:
“1.      Constant standing.
2.       Constant bilateral upper limb movement.
3.       Constant unilateral upper limb movement.
4.       Constant lifting between 1 and 3 kg.
5.       Occasional squatting.
6.       Occasional lifting 2 kg from floor to bench.
7.       Constant reaching.
8.       Frequent pushing at bench height.”
In my view, the findings of the work site assessment clearly validate the applicant’s description of the nature and extent of her duties. Moreover, the definitions contained within the work site assessment note “occasional” to mean between 5 and 33% of an eight-hour day, “frequent” to mean 34 to 66% of an eight-hour day and “constant” to occupy 67 to 100% of an eight-hour day. It is therefore apparent that, consistent with her statement evidence, the applicant was required to carry out repetitive and often strenuous tasks in the course of her employment.
Relevantly, the applicant consulted her general practitioners regarding problems with the body parts in issue over many years from 2009 onwards. A perusal of the clinical records of both her general practitioner and the treating surgeon Dr Maniam reveal extensive consultations and complaints which are consistent with the applicant’s detailed statement of her consultations with health care professionals over the years. In her evidence, the applicant said:
“14.    Since beginning my employment with Cordina Chicken Farms on or about 20 October 2008, I was developing pain and discomfort in my lower back, neck, right shoulder, left knee, both feet and both ankles. I initially thought this discomfort was normal, as I was working in a physically demanding role. In addition, I needed to financially support my family and this pain would initially subside after some rest.
15.      In or around January 2009, I was beginning to experience significant pain and discomfort in my right ankle and foot. I had been working long shifts and standing for prolonged periods of time with limited breaks. I reported these symptoms to Dr Dawoud [the applicant’s general practitioner] on 25 January 2009. As a result, I decided to consult with my GP who referred me to a specialist to better manage my symptoms.
16.      On or about 18 February 2009, I was referred to orthopaedic surgeon, Dr Vijay Maniam. I reported to Dr Maniam that I was suffering from pain in my right ankle and foot. Dr Maniam recommended that I undergo further imaging to locate the source of my pain.
17.      On or about 24 February 2009, I had a bone scan to my right foot, which showed bilateral plantar fasciitis and degenerative changes in the joints in my foot and big toe.
19.      On 28 March 2009, I reported to Dr Parasu, pain on my right scapular region which was worse on movements…
23.      During August 2009 to November 2009, I was continuing to work at the factory despite some ongoing pain in my right ankle. The repetitive bending, twisting and lifting of chicken and tubs all placed a strain on my lower back with pain radiating down my left leg. In particular, the twisting motion of my body when collecting chickens to place in the tubs placed a strain on my lower back. This pain got increasingly more difficult to manage and tolerate.
24.      On or about 21 December 2009, I consulted with GP, Dr Sucheta Jaruhar. I explained to Dr Jaruhar that I was suffering from left lower back pain that radiated into my left groin and leg area. This pain was aggravated whenever I was bending or lying down on my left side. Dr Jaruhar prescribed me with Voltaren to manage the pain.
25.      On or about 8 March 2010, I consulted with Dr Jaruhar who noted that I was suffering from pain in my left lower back that radiated into my left hip and buttock. Dr Jaruhar recommended that I treat the pain with Panadol Osteo and undergo imaging to locate the source of the pain…
28.      On or about 19 May 2010, I consulted with Dr Maniam and reported buttock pain with lower back pain. Dr Maniam noted that I was suffering from gluteal tendinitis as a result of long hours of standing, lifting and carrying at work. As a result, Dr Maniam prescribed me anti-inflammatory drugs to manage the pain…
30.      During August 2010 to March 2011, I was struggling with lower back pain and tried to manage it with medication. During this period, I began to develop increasing pain and stiffness in my left knee from standing for prolonged periods at work.
31.      On about 26 May 2011, I consulted with Dr Jaruhar. I reported that I had left knee pain and swelling and it was painful to move. Dr Jaruhar recommended medication and referred me to further imaging.
32.      On or about 28 May 2011, I had an x-ray to my left knee which showed sparing at the patella.
33.      On or about 11 July 2011, I consulted with Dr Jaruhar. I reported that I had pain in my left knee, thigh and upper left leg. This pain was aggravated whenever I went to sit or get up.
34.      On or about 12 October 2011, I consulted with Dr Maniam, who noted that I was suffering from left knee pain. Dr Maniam opined that the injury to my left knee was the result of standing for prolonged periods of time at work. I was recommended exercises and medication to manage these conditions.
35.      On or about 6 January 2012, I consulted with Dr A Ranigeris. I explained that I had been experiencing pain in my right shoulder radiating up to my neck. Dr Ranigeris recommended that I have Voltaren and radiological scans. Dr Ranigeris confirmed what I did for a living and we discussed that day how this nature of work can take a toll on my body due to its repetitive nature.
36.      On or about 24 August 2012, I consulted with GP, Dr Wen Cheng. I reported to Dr Cheng that I was suffering from left shoulder and left lower back pain. I also explained to Dr Cheng that this pain was worse after work and would somewhat improve. After resting over the weekend. Dr Cheng prescribed me Brufen and recommended Deep Heat cream to manage the pain…
45.      On or about 27 May 2015, I had an ultrasound scan to my right shoulder which showed supraspinatus tendinopathy and no subacromial bursitis.
46.     On or about 6 August 2015, I consulted with Dr Maniam that I was suffering from recurring symptoms of pain in my right shoulder which over time became more severe.
47.      On or about 23 October 2015, I was reaching to get a tub to put the chickens in and place on the conveyor belt. There was a pile of approximately 20 empty tubs and as I went to collect one of the tubs, they all suddenly fell and came crashing on top of me. The tubs fell on to the left side of my body, hitting my shoulder, lower back and left leg and left knee. Due to being hit with all these tubs, I fell to the ground and landed heavily on my right shoulder. I subsequently reported this incident to my boss and was told to attend a doctor…
49.      On or about 28 October 2015, I consulted with Dr Cheng. I explained to Dr Cheng that I was suffering from left leg pain. Dr Cheng recommended that I treat my symptoms with massages, heat pack, Dencorub and Voltaren.
50.      On or about 2 November 2015, I had an x-ray to my left foot and ankle, which reported no fracture but minor bone spurring at the Achilles tendon and a 5mm bone cyst…
53.      On or about 12 September 2016, I had a CT scan to my lower back. This showed evidence of a disc bulge at the L5/S1 level and impingement on the left S1 nerve root.
54.      On or about 15 September 2016, I received a steroid injection into my lower back, which only provided me with temporary relief of pain.
55.      On or about 10 December 2016, I had an x-ray to my left knee which reported a central loose body…
57.      On or about 31 January 2017, I had an MRI to my left knee. The scan showed evidence of prominent oedema with Hoffa’s fat interior/lateral to the patella which may have reflected patella mal-tracking/fat pad impingement.
58.      On or about 4 May 2017, I consulted with Dr Maniam. I explained to Dr Maniam that I was continuing to suffer from constant pain in my left knee and lower back, with pain radiating down my left leg. Dr Maniam opined that these symptoms were the result of my working conditions and encouraged me to seek different duties at work…
64.      On or about 17 October 2018, I had been working on the conveyor belt and was still suffering from pain in my left shoulder. As such, I was using my right arm to complete all my duties and had noticed that my right shoulder was getting fatigued and sore after work. However, I tried to ignore the pain and push on with my work. I had also just bought a car and needed to financially support my family. As I was in the process of working, I felt a sudden tearing sensation and immediate pain in my right shoulder. I reported this incident to management.
65.      On or about 20 November 2018, I consulted with Dr Maniam and reported pain in my right ankle, left ankle, lower back, left knee and right shoulder. Dr Maniam opined that these conditions were the result of my employment and that despite treatment, my right shoulder condition was getting worse and even more so after the incident on 17 October 2018 which further aggravated my right shoulder condition. Dr Maniam recommended that I have an injection to my right shoulder to manage the pain...
70.      On or about 4 June 2019, I underwent surgery to my right shoulder, in the form of an arthroscopy under the care of Dr Maniam at Minchinbury Private Hospital.
71.      Following surgery, I began physiotherapy, hydrotherapy, and took medication to manage my symptoms. Despite receiving this treatment, I continued to suffer from ongoing pain in my right shoulder. I was also suffering from constant pain and stiffness in my neck, lower back, left knee, left ankle and left foot. My left shoulder was no longer a huge issue and slowly resolved with time.
72.      On or about 28 September 2019, I had an MRI scan to my neck which showed C5/6 disc protrusion with spinal narrowing and impingement on the C5 nerve root. In addition, the scan found evidence of spinal narrowing at the C4/5 level with impingement of the right C5 nerve root.
73.      In or around January 2020, I returned to employment on light duties. I was tasked with putting stickers and tickers on boxes and working only three days a week. Despite these limitations, I was struggling to complete the work with the constant pain and stiffness in my right shoulder, lower back, neck, left knee, left ankle and my foot. I was also working in a cold environment, which my doctor had advised me not to work in as it would aggravate my injuries. I complained a number of times to my employer about these conditions but they insisted that I complete these duties.
74.      On or about 20 April 2020, I ceased employment with Cordina Chicken Farms as I could no longer put up with the constant pain in my right shoulder, lower back, neck, left knee and left foot. Despite knowing that my family would be under significant financial burden, I decided that I needed to recover from my injuries and that I would only get worse if I stayed.”

The above paragraphs in the applicant’s statement are useful as they accurately set out the extensive history of visits to various treating practitioners. Her history contained within that statement evidence was not the subject of attack by the respondent.
The applicant placed heavy reliance on both the clinical records and reports of Dr Maniam, treating surgeon together with IME, Dr Habib. Dr Maniam’s clinical records are extensive and cover many years of treatment of the applicant.
Ms Grotte submitted that when one carried out an examination of the factors listed in s 9A(2) of the 1987 Act, it is apparent the nature and extent of the applicant’s duties were clearly a substantial contributing factor to the injuries in dispute.
Dr Maniam provided a report dated 18 October 2022. In that report, Dr Maniam set out in detail the nature of the applicant’s duties. His recitation of those duties is, given the applicant’s own history and the assessment carried out by the respondent’s work site assessor, uncontroversial. In terms of the injuries at issue, Dr Maniam noted he first saw the applicant as a result of a referral from her general practitioner on 9 February 2009 for right ankle pain of 12 months duration.
By 2011, the applicant had drawn Dr Maniam’s attention to pain in her left knee which had been problematic for two months. In October 2015, Dr Maniam saw the applicant in relation to pain in her lumbar spine, which she said had been brought about an incident in October 2015 when tubs of chicken fell on her. Dr Maniam noted that presentation was against a background in May 2010 of the applicant having consulted Dr Maniam for pains in her low back and left buttock radiating to the level of the left knee which he had attributed to prolonged standing in the workplace.
Dr Maniam indicated that on 13 September 2018, the applicant presented and indicated she had developed pain over her right shoulder region radiating into her neck together with ongoing left knee pain.
Dr Maniam then dealt with the radiological investigations and the varying medical reports which have been provided in the matter, including those of Dr Habib and Dr Powell, the competing IMEs, and presented the following opinion in relation to diagnosis and causation:
“I have treated Mrs Amirro over the years, but after having considered all this documentation, reasonably, the significant problems affecting her wellbeing are the injury to the right shoulder, the injury to the lumbar spine and the cervical spine.
There has been no overt injury to the left knee or the left foot.
I would suggest that these are the real injuries and the diagnosis for these are contained in the multiple investigative tests that have been obtained.
…
The pains in the cervical spine will also be due to the conditions of her work. The prognosis being a chronic sprain and a protrusion at C5/6 with impingement.”
In relation to the lumbar spine, Dr Maniam noted:
“In May 2010, she brought to my notice that in view of the prolonged standing and repetitive movements that were involved in carrying out her duties, she developed lumbar spine pain that caused a radiation and a stab light pain in the left buttock. In an MRI that was obtained subsequently, there was evidence of an intervertebral disc bulge at L5/S1 impinging upon the left S1 nerve root.
The same body part was injured in October 2015 when chicken tubs fell on her, and when she developed an aggravation of similar problems.”
For the respondent, Dr Powell accepts the right shoulder injury but does not opine the applicant suffered any injuries to her cervical spine, lumbar spine, left knee or left foot. Rather, Dr Powell attributes the applicant’s problems in those body systems to degenerative changes which are not work related. Mr Doak for the respondents submitted Dr Powell’s reasoning was a plausible explanation for the applicant’s ongoing problems and should be preferred to the views of Dr Maniam and Dr Habib, the applicant’s IME. I do not accept that submission. Dr Powell does not, in my view, undertake a sufficiently rigorous examination of the nature and extent of the applicant’s duties. The mere presence of degenerative changes within a body system does not preclude the simultaneous presence of the effect of injury.
On balance, I prefer the views of Dr Maniam, treating surgeon, who has the benefit of treating the applicant for well over a decade. Whilst corroboration is not necessary in a civil matter such as this, Dr Maniam’s contemporaneous treating records clearly show a complaint by the applicant of issues with the body parts which are in question in this matter from time to time.
Having examined the applicant repeatedly over nearly 15 years, Dr Maniam provides a view that her duties in the workplace have caused her problems in her neck, lumbar spine, right shoulder and left lower extremity.
I include the left lower extremity in that finding, because although Dr Maniam stated there was “no overt injury to the left knee or left foot”, I accept Ms Grotte’s submission that this statement by the doctor refers to specific instances of injury, given Dr Maniam refers in his report to episodic left lower limb symptoms which are consistent with the applicant’s evidence. Moreover, Dr Maniam recommended bilateral injections for the applicant’s bilateral foot problems, which he related to her employment and also contemporaneously noted the applicant’s knee symptoms, of which she complained in October 2011, were aggravated from prolonged periods of standing at work.
The findings of injury by Dr Maniam were not simply the product of a request for a report by the applicant’s solicitors. They are, rather, contained within his contemporaneous medical records as well as his report obtained for these proceedings. In my view, Dr Maniam’s opinion, as a treating doctor, is compelling unless it can be shown there is some significant and material error in either the history taken by him or in the methodology which he adopts in coming to findings regarding causation. In my view, no such attack is maintained in this matter.
Dr Habib, IME for the applicant, attributes her problems to aggravations brought about to underlying pathology by her duties. As Ms Grotte noted, Dr Habib does not specifically deal with the question of whether the applicant’s employment is the main contributing factor, however, that is a finding for the Commission to make as the trier of fact.
Whilst Mr Doak submitted Dr Powell’s opinion that the underlying degenerative changes were the cause of the applicant’s symptoms provides a satisfactory reason for the onset of them, I respectfully find this not to be the case. In my view, Dr Habib’s opinion as to attributability is broadly consistent with that of Dr Maniam, the treating surgeon. As such, I accept the attributability set out by Dr Habib and Dr Maniam and prefer their views to those of Dr Powell.
In my view, the contemporaneous and expert medical opinion in this matter is overwhelming. For many years, the applicant has suffered symptoms in the body parts at issue. Those symptoms have been linked by her treating practitioner to her work with the respondent, and that link has been made both contemporaneously and consistently.
On a commonsense evaluation of the causal chain, I am comfortably satisfied on the balance of probabilities that the applicant has suffered injuries to the alleged body parts as a result of her employment with the respondent. I am satisfied, as Mr Grotte submitted, that those injuries fall within the second limb at the circumstances set out by Malcolm J in Oakley, and as a result, arise from the deemed date of injury in 2020.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 544

16 October 2023