Anshaw v Woolstar Pty Ltd
[2021] NSWPIC 284
•9 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Anshaw v Woolstar Pty Ltd [2021] NSWPIC 284 |
| APPLICANT: | Cole Anshaw |
| RESPONDENT: | Woolstar Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 9 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Permanent impairment compensation; terms of referral for medical assessment; applicant suffered accepted injuries to lumbar spine, cervical spine and right upper extremity owing to nature and conditions of employment and involving frank incidents at work; whether applicant’s injuries should be referred for a single assessment, or whether the assessments should be separate; Held- the applicant’s injuries fall within the second category of claim in State Government Insurance Office v Oakley (1990) Aust Torts Rep 81-003 and can therefore be referred for a single assessment, or whether the injuries should be referred for separate assessment, because although there were further injuries resulting from subsequent incidents, the damage sustained in them was greater because of aggravation of the earlier nature and conditions injury to the relevant body parts; Ozcan v Macarthur Disability Services Ltd referred to and followed; Department of Juvenile Justice v Edmed distinguished. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury owing to the nature and conditions of his employment with the respondent from 2008 to 4 November 2017 to his cervical spine, right upper extremity (shoulder) and lumbar spine. 2. The applicant’s employment was the main contributing factor to the above injury. 3. The matter is remitted to the President for referral to a Medical Assessor for determination of the applicant’s permanent impairment arising from the following: Date of Injury: 4 November 2017 (deemed) Body Systems Referred: cervical spine, right upper extremity (shoulder), lumbar spine Method of Assessment: whole person impairment |
STATEMENT OF REASONS
BACKGROUND
The facts of this matter are largely uncontroversial. Nevertheless, they give rise to a dispute surrounding the proposed terms of referral of the applicant’s claim for permanent impairment compensation to a Medical Assessor.
There is no issue the applicant’s injured body systems will be referred for medical assessment. He claims permanent impairment compensation for injury to his cervical spine, right upper extremity (shoulder) and lumbar spine.
The applicant claims three affected body parts should be referred together as the injury occurred as a result of the nature and conditions of his employment with the respondent between 2008 and 4 November 2017, or alternatively as a result of a disease process with a deemed date of injury of 21 January 2019.
For its part, the respondent submits there should be separate referrals of the body systems at issue which it says relate to various injurious events.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining for determination is the terms of the referral of the applicant’s injured body systems to a Medical Assessor.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing before me on 24 June 2021. 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
At the hearing, the applicant was represented by Ms E Grotte of Council instructed by Mr J Peisley, solicitor. The respondent was represented by Mr T Grimes of counsel instructed by Mr R Passas, solicitor.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and taking into account in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments; and
(b) Reply and attachments.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND CONCLUSIONS
Terms of the Referral to the Medical Assessor
The applicant contends there is a single impairment to the cervical spine, lumbar spine and right shoulder which arises from the nature and conditions of his employment.
Ms Grotte submitted the applicant is also entitled to have each of the body systems assessed together, as the circumstances of this matter for within the second limb of damages as set out in State Government Insurance Office v Oakley (1990) Aust Torts Rep 81-003 (Oakley).
In that matter, Malcolm CJ set out three categories of cases which involve injuries arising from multiple accidents. Those categories are:
“1. Where the further injury results from a subsequent accident, which would not have occurred had the point of not being 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 include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
Ms Grotte submitted it was the second of these limbs that apply in the circumstances of this matter, namely that the subsequent events which contributed to the applicant’s injuries to his cervical spine, lumbar spine and right shoulder would have occurred had the applicant been in normal health, but the damage sustained in those incidents was greater because of the aggravation of the injury caused by the nature and conditions of his employment with the respondent.
The applicant commenced work with the respondent in or about October 2006 as a
picker-packer in a Woolworths distribution centre in Wyong. He described the work as repetitive and heavy, involving placing up to hundreds of boxes, each weighing up to 20 kilos or more onto pallets over the course of 18-hour shift.
The applicant states he often had a sore back and shoulders after his shift. In his statement, he said:
“6. After ever shift my back and shoulders would be sore, however, I didn’t report it as I needed the job and it was made clear that you needed to maintain the “pick rate” required by WRDC management or you would be terminated.
7. The pick rate was said at lifting 180 boxes per hour and over an 8-hour shift this meant I lifted about 1,440 boxes (i.e., 180 boxes per hour times eight hours), and would often have an aching back at the end of a shift. This would add up to anywhere between 10-20 tonnes per day, often and difficult and demanding situations where it was difficult to lift these boxes. I witness many men with injuries at the RDC. Once selected, the load were [sic] at least five metres off the ground.
8. I then worked on the high reach forklift for about four years between 2008 and 2013. This required constantly looking upwards as the racks were at least five metres high. Once selected, the weight had to be withdrawn from the rack which meant I had to be reversing the machine which required that I twist my neck to look up five metres and backwards as I withdraw the load.
9. On or about 24 April 2013, I reported the injury to the right shoulder/neck (which was an impingement of C6 nerve and multilevel disc herniation to my neck directly related to undertaking this type of work during this time). I remember that I started experiencing neck pain about 12 months after starting on the high reach forklift in late 2008.
10. It was well known in the work-site and once you sustained this type of injury there was a procedure whereby you could make a request to management to get off the high reach forklift and never have to go back on it due to having suffered an injury. I did this and wrote a note to management and I was taken off the high reach forklift in about 2013.
11. I reported most of these injuries to HR but the injuries were occurring so often that it seems silly to report the minor injuries like having a sore back or sore neck at the end of each shift. I also believed that the neck injury was totally over looked as it related to my right shoulder (the slip and fall injury) as it has become worse over about the same period.”
The applicant underwent a right shoulder surgery in 2013. Upon his return to work, the applicant again engaged in picking and packing, but the orders were lighter. He says he continued to have issues with his right shoulder, and after one afternoon of lifting boxes, he pushed a turnstile at the distribution centre and felt his pain in his right shoulder intensify.
In relation to his low back, the applicant stated:
“16. In about late 2015, I also suffered a lower back injury from lifting, pushing and pulling as a store person team member “picking” boxes. In the early 2016, I saw Dr Coughlan who stated that I had two bulging discs in the lower back (I think L4/5).
17. On 4 November 2017, I slipped on a wet floor falling on my right arm and shoulder. This made my earlier injury to my right shoulder and neck worse and I reported it straight away.”
In support of the applicant’s submissions, Ms Grotte relied upon the opinions of both the applicant’s Independent Medical Examiner (IME), Dr Guirgis, and on the opinion of the respondent’s IME, Dr Bentivoglio.
In his report dated 3 March 2021, Dr Guirgis noted the applicant had:
“… the history of performing duties that were described to be demanding on his neck, right shoulder, and back in the cause of his employment as a full-time pick and pack for Woolworths Wyong Regional Centre which he did since 2006. As a result, he sustained injuries to his neck, right shoulder, and lower back.”
Dr Guirgis noted the specific nature of the applicant’s duties in his earlier report dated 10 July 2019. The history of the applicant’s duties provided by Dr Guirgis is broadly consistent with that set out in the applicant’s statement. After taking that history, Dr Guirgis noted the nature and conditions of the applicant’s employment had caused injuries to his right shoulder and neck together with his lumbar spine. Dr Guirgis also referred to further aggravations to the applicant’s neck and right shoulder by way of the nature and conditions of his employment once he began working on the high forklift together with a frank injury to the lumbar spine while lifting on 19 November 2015. Dr Guirgis also referred to the frank injury to the cervical spine following the slip and fall incident on 4 November 2017 as aggravations of injuries caused by the nature and conditions of his employment.
Having taken a history of the various frank incidents which the applicant suffered together with the nature and extent of his duties, Dr Guirgis provided the following opinion on causation:
“Although there were reports of what was called ‘frank injuries’ and there were reports of ‘nature and conditions’ yet he was clear from the history that the main culprit here is the nature and conditions of his employment which remained to be a substantial contributing factor to the current presentation. Although there was documentation about frank injuries, the maximum effects of such frank injuries would be an increase in symptoms and disabilities rather than an increase in the impairments already affecting the cervical spine, the right shoulder and the lumbar spine rendering them more vulnerable to the effects of such incidents. Any effect on the underlying impairments should be considered to be negligible and are not assessable under the guides.”
Ms Grotte submitted that opinion by Dr Guirgis is consistent with the second limb of causation set out in Oakley, and that the doctor has acknowledged the individual injurious events but has described them as aggravations of earlier injuries.
Dr Bentivoglio saw the applicant on behalf of the respondent and produced a report dated 22 February 2019. Dr Bentivoglio also had the benefit of an extensive history from the applicant including but not limited to the slip and fall incident on 4 November 2017. Dr Bentivoglio set out the findings of an MRI of the applicant’s cervical spine dated 28 August 2018, and also noted the prior history of right shoulder surgery and the C5/6 anterior cervical discectomy and fusion carried out on the applicant by treating neurosurgeon Dr Damodaran.
Dr Bentivoglio provided a working diagnosis of a cervical brachialgia secondary to C6 and C7 nerve root compression together with signs of C7 radiculopathy. He also diagnosed shoulder issues.
When specifically asked by the respondent whether the applicant’s cervical spine symptoms are referable to the slip and fall incident in November 2017, Dr Bentivoglio replied:
“Undoubtedly, the sort of work that he has done, which is a forklift driver with chronically hooking up had been a substantial contributing factor to his compensable condition. A slip and slide on a floor has just exacerbated the pre-existing degenerative condition, which is now causing significant cervical brachialgia.”
Dr Bentivoglio was then asked whether the applicant’s employment was the main contributing factor to his compensable condition and was asked to consider the nature of the applicant’s employment and the specific tasks involved together with the duration of his work. Dr Bentivoglio replied:
“The sort of work he has been doing for 12 years would put increased stresses and strains on his neck and caused premature degenerative changes. A slip and fall would easily exacerbate and cause disc protrusions and neurological compression and compromise. I do not believe that a similar injury would have happened if he was doing a sedentary type job. I do believe that his employment has been as I have said a substantial contributing factor to the development of a degenerative disease in his neck and also the acute exacerbation with the acute attack of cervical brachialgia after the slip and fall.
The worker’s life away from the workplace certainly would have been a contributing factor to his degenerative disease but I feel that his work has been the most substantial factor contributing to his degenerative disease and the acute exacerbation caused by the slip and fall.”
Ms Grotte submitted this opinion from Dr Bentivoglio means the applicant’s cervical symptoms fall squarely within the second limb in Oakley, and accordingly they would form part of a single referral, along with the lumbar spine and right shoulder, in relation to which Dr Guirgis provides a similar opinion.
Alternatively, Ms Grotte submitted that Dr Bentivoglio’s report also provides a basis for finding that the applicant’s cervical symptoms were in the nature of a disease brought about by the nature and conditions of his employment, as indeed are the lumbar spine and right shoulder conditions.
Ms Grotte also took support for the applicant’s position from the views of treating spinal surgeon Dr Coughlan, who noted a history of the applicant experiencing a sudden onset of lower back pain after a day of heavy lifting. She submitted there was no specific injury referred to, rather the applicant was simply carrying out the duties which she had for many years when his lumbar spine condition developed.
Further details of the applicant’s lumbar spine condition are set out in Dr Coughlan’s report to the applicant’s general practitioner dated 6 April 2017, found at page 37 of the application. In that report, Dr Coughlan noted the applicant had been on light duties for the past 12 months and essentially has had stabbing pain in the back and down his left leg, with the main issue being that “every time he tries to upgrade his duties, he would have deterioration in terms of his pain levels.”
Treating shoulder surgeon Dr Hutabarat also provided a report dated 27 May 2015 in which he noted the applicant had ongoing impingement episodes with his right shoulder and that whilst he had made a reasonable recovery after a consultation in 2013, he noticed “when he is picking around about the 20 kg mark overhead that he gets pain posterolaterally and anterolaterally in the subacromial region.”
Ms Grotte submitted this was the further evidence of the nature and conditions of the applicant’s employment being the cause of his right shoulder problems. Dr Hutabarat’s involvement with the applicant had steamed from a history in March 2013 of the applicant developing his right shoulder injury as a result of the nature and conditions of his employment with “abduction and elevation type activities with his right arm.”
Dr Hutabarat had also provided a report dated 4 October 2013 in which he referenced the turnstile incident, where the applicant was bandying in at work and injured his right shoulder when he was going through a heavy revolving turnstile. According to Dr Hutabarat, the turnstile sprang back and caused some discomfort to the applicant’s right arm and since that time he has had some impingement like discomfort.
In relation to the applicant’s lower back, Ms Grotte submitted that his injury was plainly a consequential condition arising from the shoulder injury, and that the first reporting of it was his general practitioner, Dr Green, providing a report to the respondent whereby the applicant sustained an injury to his lumbar spine on 20 February 2013 while carrying out exercises prescribed by his physiotherapist who was treating his neck and right shoulder injuries. According to Dr Green, those exercises involved arching the applicant’s back and accordingly he suffered burning back pain. Dr Green clearly set out that the back injury was as a result of the physiotherapy treatment which he was receiving for his shoulder injury, and that treatment involved core strengthening which in turn lead to the back injury.
Ms Grotte submitted that whilst the respondent is seeking to separate assessments by way of reference to different dates of injury, that position is untenable given the applicant’s evidence, the opinions of Dr Bentivoglio, Dr Guirgis and also the treating doctor evidence from Drs Green, Coughlan and Hutabarat.
For the respondent, Mr Grimes noted the Commission must be satisfied that there is an actual basis that the decision in Oakley applies, or that there should be an aggregation of impairment. He submitted that Oakley did not apply to the circumstances of this case because, as the claim has been pleaded and supported it is one for nature and conditions of employment causing injury.
The respondent submitted there was nothing in the medical evidence which would support a finding by the Commission that the injuries suffered in the applicant’s slip and fall in November 2017 had been made worse because of the nature and conditions of his employment. To the contrary, Mr Grimes submitted Dr Guirgis dismissed the frank incident of having any impact and says that the entire neck impairment is due to the nature and conditions of employment.
In terms of the opinion of Dr Bentivoglio, Mr Grimes submitted it ought not be read as supportive of a submission in relation to the second limb of Oakley. Rather, he submitted Dr Bentivoglio’s report related to a separate injury to the cervical spine which included pathology which was present.
Whilst that may be the case when read in isolation, Dr Bentivoglio’s report should not, in my view, be read in a vacuum. Although asked to comment with respect to an alleged separate injury, Dr Bentivoglio’s comments regarding causation are in my opinion instructive. They broadly accord with the views of Dr Guirgis. In my opinion, they support the applicant’s submissions with respect to his injuries falling within the category of the second limb in Oakley.
Mr Grimes submitted that the facts of this case were more referrable to those set out in Department of Juvenile Justice v Edmed (2008) NSWWCCPD 6 (Edmed). In that matter, the Commission dealt with the applicant having suffered two separate wrist injuries, however, it was found they ought to be assessed together as they gave rise to the same pathology. Mr Grimes submitted that is not the case here. He submitted that whilst the injuries are not disputed, the respondent says they are not the same injury and did not give rise to the same pathology, and accordingly should not be aggregated.
In my view, the decision in Edmed is distinguishable from the present matter. Having found the evidence establishes the facts of this case fall within the second limb of Oakley, it follows that Edmed, which was a case dealing with questions surrounding the same pathology arising out of different injurious events, has no application to these proceedings. Rather, I am of the view the circumstances of this matter fit within those referred to by the Court of Appeal in Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56. In that matter, the Court applied the decision in Oakley, and noted multiple body parts may be referred for assessment together if they arise out of the same incident. That approach is consistent with the wording of section 65(2) of the 1987 Act, and having made a finding that the applicant’s injuries are referable to the nature and conditions of his employment, it would follow that section 65(2) would lead to the applicant’s injuries being referred for assessment together.
Mr Grimes submitted that the applicant’s lumbar spine injuries related to the nature and conditions of his employment picking and packing up to 2013, together with a separate frank 2015 lumbar spine injury. In my view, the evidence discloses on balance that the effects of the 2015 incident would not have been so serious were it not for the original injury caused by the nature and conditions of employment through years of picking and packing heavy boxes.
The respondent also submitted the neck injury related to the nature and conditions of the applicant’s work driving a forklift together with a separate slip and fall injury in November 2017. In my view, however, for the reasons already set out above, Dr Bentivoglio’s opinion makes it clear the nature and conditions of employment were the underlying cause of the cervical spine problems, and the slip and fall was merely an aggravation of those issues.
In relation to the right upper extremity injury involving the turnstile at work, I note the applicant’s uncontested evidence is that after the shoulder was operated on in 2013, he returned to work and continued having issues with it up to an including the incident involving the turnstile. In my opinion, the circumstances of that injury are such as to bring them within the second limb in Oakley. That is, the problems arising from it would not have been as severe had the nature and conditions injury not arisen.
That view is, in my opinion, supported by IME Dr Guirgis and the treating surgeon Dr Hutabarat. Dr Hutabarat reported in March 2013 the applicant was suffering impingement-like problems as a result of the nature and conditions of work. In April 2013, the applicant underwent a SLAP repair. Then, the applicant returned to see Dr Hutabarat in October 2013 and reported on the turnstile incident, after which Dr Hutabarat again noted impingement—like discomfort. The worsening of the same type of impingement originally diagnosed after the nature and conditions injury is, in my view, supportive of a finding that had the first injury not occurred, the damage sustained for the turnstile incident would not have been so great.
Mr Grimes noted that the nature and condition of the applicant’s employment had differed over time and, he submitted, gave rise to different pathology at different times. However, there can be no question, given his statement evidence, that the applicant’s duties were at all times heavy and involved placing stress on his cervical and his lumbar spine, albeit the precise nature of those duties may have altered from time to time.
Mr Grimes took the Commission to the treating evidence and noted the significant pathology which developed in the applicant’s cervical spine following the slip and fall in 2017. He submitted it was clear evidence of pathological change brought about by that injury rather than any cause by aggravated nature and conditions of employment.
I reject that submission for the following reasons. In his report dated 24 September 2018, Dr Damodaran takes a history of the applicant being “a 48-year-old gentlemen who presents with a 4-5-year history of neck pain. Recently, after a fall, his symptoms have significantly worsened.” In my opinion, that history is consistent with the applicant’s own evidence and in my view leads his cervical spine condition to fall squarely within the second limb of Oakley.
On balance, having regard to the treating and IME medical evidence in this matter, I am satisfied that each of the applicant’s cervical spine, lumbar spine and right upper extremity (shoulder) injuries were brought about by the nature and conditions of his employment with the respondent.
The fact that the applicant has suffered other injurious events to those body parts does not, in my view, lead to a conclusion of separate injury. Rather, the medical evidence overwhelmingly supports a finding that the separate frank events which occurred over time were exacerbations or aggravations of injuries caused by the nature and conditions of employment. That is, I am satisfied on the balance of probabilities that the further injuries to the applicant’s cervical spine, right upper extremity (shoulder) and lumbar spine which have resulted from the subsequent accidents caused greater damage because of the aggravation of the earlier injury caused by the nature and conditions of his employment, and as such that additional damage should be treated as having being caused by the nature and conditions of his employment.
SUMMARY
For the above reasons, the Commission will make findings and orders as set out on page 1 of the Certificate of Determination.
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