Asadi v Gabi Duta Pty Ltd t/as Gabi's Agricultural Labour Services
[2022] NSWPIC 540
•23 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Asadi v Gabi Duta Pty Ltd t/as Gabi's Agricultural Labour Services [2022] NSWPIC 540 |
| APPLICANT: | Issa Asadi |
| RESPONDENT: | Gabi Duta trading as Gabi’s Agricultural Labour Services |
| Member: | Richard Perrignon |
| DATE OF DECISION: | 23 September 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for whole person impairment compensation as a result of injury to the lumbar spine, thoracic spine, cervical spine and both shoulders; whether disease of gradual process; whether conditions aggravated, accelerated, exacerbated or deteriorated by nature and conditions of employment; Held – the nature and conditions of employment with the respondent were the main contributing factors to the contraction, aggravation and deterioration of a repetitive strain condition of the lumbar spine; the nature and conditions of employment with the respondent were the main contributing factors to the contraction, aggravation and deterioration of a repetitive strain condition of the thoracic spine; the applicant’s employment as a labourer from 2002 to 2006, including employment in the respondent’s vineyard, was the main contributing factor to the contraction of diseases of gradual process in the lumbar spine, thoracic spine, cervical spine and shoulders; the respondent was the last employer to employ the respondent in employment as a labourer, the applicant’s employment as a labourer was employment to the nature of which diseases of his lumbar spine, thoracic spine, cervical spine and shoulders were due. |
| determinations made: | 1. the nature and conditions of employment with the respondent were the main contributing factors to the contraction, aggravation and deterioration of a repetitive strain condition of the lumbar spine; 2. the nature and conditions of employment with the respondent were the main contributing factors to the contraction, aggravation and deterioration of a repetitive strain condition of the thoracic spine; 3. the applicant’s employment as a labourer from 2002 to 2006, including employment in the respondent’s vineyard, was the main contributing factor to the contraction of diseases of gradual process in the lumbar spine, thoracic spine, cervical spine and shoulders; 4. the respondent was the last employer to employ the respondent in employment as a labourer, and 5. the applicant’s employment as a labourer was employment to the nature of which diseases of his lumbar spine, thoracic spine, cervical spine and shoulders were due. 6. The matter is remitted to the President for referral to a Medical Assessor to assess whole person impairment (lumbar spine, thoracic spine, cervical spine, left upper extremity – shoulder, right upper extremity - shoulder) as a result of injury on 18 June 2006 (deemed date). 7. The Registry is requested to supply the following to the Medical Assessor: a. Application to Resolve a Dispute; b. Reply; c. respondent’s Application to Admit Late Documents, and d. applicant’s Application to Admit Late Documents. |
STATEMENT OF REASONS
BACKGROUND
Mr Asadi migrated to Australia from Afghanistan in 2001. In Australia, he worked as a labourer in various agricultural enterprises and vineyards. On about 6 June 2006, he came to work as a labourer in the respondent’s vineyard. On 18 June 2006, during his lunch break, he tripped over a wire buried in the ground and fell over, injuring his lumbar spine. He reported the injury to his supervisor, consulted a general practitioner (GP) in Mudgee, and underwent X-rays of the thoracic and lumbar spine on 11 July 2006. He was paid weekly compensation for that injury until 2017.
He now claims compensation for a 28% whole person impairment (7% lumbar spine; 5% thoracic spine, 5% cervical spine; 8% right shoulder; 7% left shoulder) as a result of injury on 18 June 2006 (deemed date). He says that the nature and conditions of his employment with the respondent either:
(a) caused disease processes in each of these body parts, and that his employment was the main contributing factor to the disease, or
(b) aggravated, accelerated, exacerbated or deteriorated the disease processes, and that his employment with the respondent was the main contributing factor to the relevant aggravation, acceleration, exacerbation or deterioration.
In the alternative, he says that his work as a labourer generally caused disease conditions of each body part, and that s 15 of the Workers Compensation Act 1987 (the 1987 Act) operates to render the respondent liable for them, as the last employer to employ him in employment to the nature of which the disease conditions were due.
He relies on the opinion and assessment of orthopaedic surgeon, Dr Dixon, who says that
Mr Asadi was engaged in heavy and repetitive work which caused, or aggravated, accelerated, exacerbated or deteriorated disease processes in each of these body parts.The insurer does not dispute that Mr Asadi suffered incapacity as a result of a frank injury to the lumbar spine on 18 June 2006. It has paid weekly compensation till 2017.
It disputes:
(a) that the work performed by Mr Asadi for the respondent was sufficiently arduous to cause or aggravate any disease conditions in the relevant body parts;
(b) that the nature and conditions of employment with the respondent either caused, or aggravated, accelerated, exacerbated or deteriorated disease processes in each of these body parts, and
(c) that the nature and conditions of employment was the main contributing factor to any such disease, or its aggravation, acceleration, exacerbation or deterioration.
It also raises the time bar pursuant to ss 254 and 261. It says that, until a solicitor’s letter dated 21 August 2020, some 14 years after deemed date of injury, Mr Asadi gave no notice that he suffered from conditions of the thoracic spine, cervical spine and shoulders, that his employment with the respondent was employment to the nature of which those conditions were due, or that that the nature and conditions of employment had aggravated, accelerated, exacerbated or made to deteriorate a disease process of the thoracic spine, cervical spine or shoulders.
Mr Asadi relies on his claim form signed on 18 September 2006, in which he gave notice that he had tripped in the vineyard on 18 June 2006, causing pain to the low back and feet, and of a diagnosis of ‘Disk injuries’.
In the alternative, he says that, until after he was assessed by Dr Dixon on 24 June 2020, he did not understand the law with respect to the making of claims for workers compensation, and was not aware that the nature and conditions of his employment with the respondent (as distinct from the frank injury of 18 June 2006) had caused, aggravated, accelerated, exacerbated or deteriorated disease processes of the spine or shoulders.
ISSUES FOR DETERMINATION
10.The issues for determination may be broadly summarised as follows:
i) whether the claim is time barred by operation of s 254 or s 261;
ii) if not, whether the nature and conditions of employment with the respondent were the main contributing factor to:
(1)the contraction of disease conditions in spine or shoulders identified by Dr Dixon, or
(2)the aggravation, acceleration, exacerbation or deterioration of such disease conditions, and
iii) whether s 15 of the 1987 Act operates to make the respondent liable for disease conditions of each body part.
11.The parties are agreed:
(a) that there should be an award for the respondent in respect of any allegation of injury which is barred by operation of s 254 or s 261, and
(b) that, except where the time bar applies, there should be a referral for assessment of any body parts in respect of which I am satisfied of injury.
PROCEDURE BEFORE THE COMMISSION
12.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.
EVIDENCE
Documentary evidence
13.The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply with attached documents;
(c) respondent’s Application to Admit Late Documents, and
(d) applicant’s Application to Admit Late Documents.
14.Directions for written submissions were made at the hearing. Both parties filed written submissions which have been taken into account. The applicant objected to the respondent’s submissions, on the basis that they were not submissions in reply, and were late.
I considered it in the interests of justice to take them into account, as the delay was small, and there was no prejudice to the applicant, who correctly took the opportunity himself to make written submissions in reply.15.Written submissions on the time bar had been made by both parties before conciliation/arbitration. These have also been taken into account. Applicant’s written submissions on the onset of symptoms have also been taken into account.
FINDINGS AND REASONS
Time bar
16.Section 254(1) provides that compensation is not recoverable unless notice of the injury is given to the employer as soon as possible after it happened and before the worker has voluntarily left the employment concerned. It is common ground that notice was not given until after the worker left his employment.
17.Section 254(2) provides that failure to give notice is not a bar to recovery if, among other things, it is found that there are ‘special circumstances’ of the kind set forth in sub-section (3). They include, ignorance, mistake, absence from New South Wales or other reasonable cause.
18.The applicant signed five statements which are before the Commission, dating from
3 November 2017 to 1 June 2022. He said he migrated to Australia from Afghanistan in 2001. From 2002 to 2006 he worked as a farm labourer in South Australia and New South Wales. On about 6 June 2006, he commenced work for the respondent labour hire company at a vineyard in Mudgee as a casual farm hand.19.He has limited education. He refers to it as four years of education. He spoke no English when he arrived in Australia, and was dependant on fellow Afghan workers to translate for him. Up till 2006, he spoke only ‘very basic’ English, despite attending TAFE in 2007 to study English. In his last statement dated 1 June 2022 he admitted that his English is now a lot better than it was, but said he still needs an interpreter. He said he was:
“always aware of the neck pain, right and left shoulder pain, and back pain before the incident of 18 June 2006. However, I could not speak English and I had no idea about entitlements for workers who are injured while working in repetitive and physically demanding work.”
20.He said that, until he told his solicitor about pain in the back and other areas in November 2017, ‘I always had problems with translating my pains into English’.
21.His evidence as to language difficulties is uncontested. I accept that he has always struggled with English. I interpret him to mean that he had no idea about the requirements of workers compensation law generally at the time of his injury. That includes time limits for the making of claims. That evidence is also uncontested and I accept it. There is no evidence before me that his knowledge of the law of workers compensation, and its requirements for the timely making of claims, improved over time.
22.I am comfortably satisfied that, prior to notice of his claim made by his solicitor on or about 21 August 2020, he did not know about the time limits prescribed by ss 254 or 261. His failure to give notice was occasioned by ignorance of the time limits. This is one of the special circumstances listed in s 254(3). I find that there are special circumstances. Section 254 does not provide a bar to recovery of compensation.
23.Section 261 provides that compensation cannot be recovered unless a claim is made within six months of the injury. In this case, the injury is deemed by ss 15 and 16 of the 1987 Act to have occurred on the date of incapacity, which is 18 June 2006.
24.Sub-section (3) provides that failure to make a claim in time is not a bar to recovery if the failure is occasioned by ignorance, mistake, absence from the State or other reasonable cause, and the claim is made within three years of the injury. For the reasons stated, I have found that the failure to make a claim in time was caused by ignorance. It remains to be determined whether it was made within three years of the injury.
25.Sub-section (6) provides that, for the purposes of s 261, the injury is taken to have been received when the worker first becomes aware of it. So far as the evidence discloses, the first medical practitioner to express the view that the nature and conditions of employment caused disease conditions of the lumbar spine, thoracic spine, cervical spine, or shoulders was Dr Dixon, in his report of 24 June 2020. Until Dr Dixon’s reports of that date, there is no evidence that the worker was aware that he had suffered a disease injury as distinct from the frank injury to his lumbar spine on 18 June 2006. I am not satisfied that he was aware. He is likely to have first become aware on 24 June 2020 or shortly afterwards. For the purposes of s 261, the disease injury is taken to have been received on or shortly after 24 June 2020.
26.Dr Dixon’s reports of that date were served under cover of a claim dated 21 August 2020, which is within six months of 24 June 2020. For those reasons, s 261 does not operate to bar the claim in respect of injury by way of the contraction of a disease.
27.The first occasion on which an expert opinion was provided to the effect that Mr Asadi’s employment with the respondent contributed substantially to an aggravation, acceleration, exacerbation or deterioration of the disease conditions in his spine and shoulders was the subsequent report of Dr Dixon dated 1 February 2021.
28.There is no evidence that Ms Asadi was apprised of that contribution before Dr Dixon’s report, and I am satisfied that he first became aware on 1 February 2021 or shortly afterward. For the purposes of s 261, the aggravation injury is taken to have been received
1 February 2021. According to the s 78 notice dated 3 February 2022, the claim based on aggravation, acceleration, exacerbation or deterioration of disease conditions was made on 26 October 2021, well within three years of the date of injury.29.For those reasons, s 261 does not operate to preclude the claim based on an allegation of injury by way of aggravation, acceleration, exacerbation or deterioration of a disease.
Applicant’s evidence
30.There were five statements of Mr Asadi before the Commission. In his final statement of
1 June 2022, he clarified his work history prior to June 2006. After migrating to Australia in 2001, he commenced work as a labourer in an abattoir in Young for six months. From then until June 2006, he said, he picked fruit on a farm at Leeton, worked in abattoirs in Dubbo and Murray Bridge, picked fruit in Shepperton, worked with grapes (which I take to mean vineyard work) in Bonvale, Mildura, Mudberra and Mudgee. He described it all as ‘hard physical work’. He said he was working 10 hours a day, 7 days a week. His duties included harvesting by hand, irrigation, operating farm machinery as well as spraying fertiliser and pesticides, moving plants with wheelbarrows and doing heavy physical labouring work such as doing fence repairs. He said he harvested fruit by hand. He had to frequently bend, crouch, lift and carry crops and tools. It was physically demanding work, which he said impacted on his knees, neck, shoulders and back.31.There is no evidence to the contrary. Having regard to the kind of employment to which he refers, I accept that his duties were those of a labourer in heavy, arduous and repetitive work from 2002 to 2006.
32.In his statement signed on 17 May 2021, he described his duties for the respondent. He said he would move rapidly down a row of vines, cutting individual bunches of grapes with hand secateurs, averaging 25 to 35 cuts per minute, carrying them to a plastic tub, placing them in the tub, repetitively bending to knee height to remove clusters from the bottom rows, carrying the tubs full of grapes to a gondola – each tub weighing up to 36kg - lifting the tubs over his head, leaning his body against the vine, to dump the grapes over the top of the vines into the gondola on the other side, and running back to commence the process again. He said this repetitive heavy lifting and carrying ‘was a significant factor in my neck, right and left shoulder, and back’. I interpret him to mean, among other things, that it placed strain on those areas.
33.He described it as ‘extremely heavy and hard work’. He said:
“At the end of a heavy day's pruning, I would come home and I would suffer pain and discomfort in my neck, shoulders, and back. However, I could not speak English and it was the only work I could to which did not require the use of English. …
At the end of a day's pruning, my muscles, tendons and joints were all sore in every part of my body.
I believed this was due to the repeated exposure to force being applied to the muscles and tendons in my neck, back, and right and left shoulders.”
34.In his final statement of 1 June 2022, Mr Asadi said that he suffered pain in his spine and upper limbs, and elsewhere, from 2005, but did not need to see any doctors. Elsewhere in the statement he says the symptoms began in 2003, but this appears to be a typographical error. Nothing turns on it.
35.He said:
“The incident which occurred on 18 June 2006 mainly caused back pain and that is what I went to the doctor’s about, however, my work in the vineyards also caused neck and right and left shoulder pain.
I was always aware of the neck pain, right and left shoulder pain, and back pain before the incident of 18 June 2006. However, I could not speak English and I had no idea about entitlements for workers who are injured while working in repetitive and physically demanding work.”
36.In his statement of 17 May 2021, he said that he would complain of back pain, but did not know his back was divided into lumbar and thoracic spine. He said that doctors would ask him about his back, but not about his neck or shoulders.
37.In his final statement, he said that the fall on 18 June 2006 aggravated his back pain, and that the doctors were only concerned about his back injury. He added - presumably with respect to any suggestion that he had failed to report symptoms in other body parts:
“I had trouble corresponding with them and it was better and easier just to keep it simple.”
Dr Dixon
38.The worker relies on the opinions expressed by orthopaedic surgeon, Dr Dixon, in his reports of 24 June 2020 and 1 February 2021. At the request of the workers’ solicitor, Dr Dixon examined the worker on 11 June 2020 by video.
39.He took a history that Mr Asadi had worked as a farm labourer from 2002 to 2006, and from about 6 June 2006 worked as a labourer for the respondent in a vineyard at Mudgee for 10 hours per day, 7 days per week, planting and maintaining vineyards, erecting trellises, using irrigation equipment, pruning and training vines, spraying for pests and diseases and hand picking grapes during cold months in wet, slippery and muddy conditions, using hand secateurs for pruning grape picking and budding knives, with mechanised secateurs, loppers and hand saws for older vines. Dr Dixon descried it as ‘very hard physical work’.
40.This is consistent with, though not identical to, the applicant’s own description of his duties in his statement signed on 17 May 2021.
41.Dr Dixon took a history of a slip and fall in the vineyard on muddy ground on 18 June 2006, during which Mr Asadi injured his back. A CT scan revealed a disc protrusion at L1/2 and disc bulges.
42.He took a history of treatment, including seeing a doctor on 1 September 2006 in Adelaide, the onset of low back pain, left sciatica, and thoracic symptoms. An MRI in November 2006 revealed mid lumbar annular tears. There was neck pain radiating to the arms with paraesthesia in the legs. In July 2007, Dr Dixon noted, Mr Asadi reported neck problems with pain radiating down his arms to an injury management consultant. That seems to have been Dr Perla, whose report is considered below.
43.Mr Asadi complained to Dr Dixon of pain in the lower neck with bilateral shoulder brachalgia, pain and stiffness in both shoulders. Mr Asadi reported no prior history of pain in the neck or low back and no prior history of sciatica or shoulder brachalgia. Dr Dixon proceeded to a clinical examination, which he described in detail in his report of 24 June 2020.
44.He took into account a number of radiological investigations. A left shoulder ultrasound of
26 March 2018 showed subacromial bursitis with supraspinatus tendinopathy and possible partial tears. A CT scan of the cervical spine on 26 March 2018 showed degenerative change at C1/2, a small disc protrusions at C3/4, and C4/5, and mild uncovertebral joint degeneration at various levels. A CT scan of the thoracic spine on the same date showed osteophytes at T5/6 and from T8 to T10, without significant disc protrusions.45.He was not referred to the X-rays of the thoracic spine conducted on 11 July 2006.
46.An MRI of the lumbar spine performed on 24 December 2010 showed multilevel degenerative change with annular tears from L1 to L4, focal disc protrusion at L1/2, moderate facet joint arthrosis at L1 to L4, and a disc bulge at L4/5 with L5 nerve root swelling without focal disc protrusion. The radiologist considered there were no significant changes from the MRI performed in 2009.
47.Dr Dixon concluded there had been a back strain injury on 18 June 2006 with ongoing bilateral sciatica and subsequent thoracic pain, neck pain and shoulder brachalgia. He made a number of specific diagnoses, including the following:
(a) back strain injury with post traumatic stiffness and dysmetria, residual facet arthralgia and annular tears in the lumbar spine; aggravation of pre-existing spondylosis with bilateral sciatica;
(b) thoracic back strain with post traumatic stiffness and interscapular (thoracic) pain;
(c) neck strain injury with lower cervical spine and tenderness and small central disc protrusion at C3/4 and C4/5, and
(d) bilateral shoulder brachalgia with trapezial muscle pain with stiffness and subacromial bursitis and supraspinatus tendinopathy.
48.He considered there was a causal relationship between each of these and the frank injury of 2006 on the one hand, and with the nature and conditions of employment on the other.
49.Dr Dixon noted that Mr Asadi had been fit for this heavy work prior to injury on 18 June 2006, and incapacitated for work ever since. He noted that the worker had not ‘to any extent, been complaining of injuries similar to those complained of after the alleged work injury’.
50.As indicated, he assessed a 28% whole person impairment.
51.In a supplementary report of 1 February 2021, Dr Dixon said that the worker had suffered a frank injury to his lumbar and thoracic spine on 18 June 2006. He also expressed the following view:
“His work as a farm worker/vine worker caused work-related injuries to the lumbar spine, thoracic spine cervical spine and right and left shoulders which can be classified as an aggravation acceleration and deterioration of these areas due to the repetitive nature of his work as a farm worker/Vine worker. This has resulted in degenerative and disc protrusions at multiple levels in the cervical, thoracic and lumbar spine and lead to partial tears in the left shoulder bursae and thickening and synovial thickening in the right shoulder.”
52.His reference to work as a farm worker was a reference to the farm work undertaken from 2002 to 2006 prior to employment with the respondent. The reference to work as a vine worker appears to be a reference to his work with the respondent. I interpret Dr Dixon to mean that Mr Asadi’s work as a labourer, both with the respondent and from 2002 to 2006, caused the pathologies in the spine and shoulders to which he refers.
53.He continued:
“These conditions can be categorised as a disease condition, being an underlying pre-morbid pathological condition which has resulted from the claimant’s work as a farm worker/vine worker which is notoriously heavy and physically demanding on the body, especially the cervical, thoracic and lumbar spines and also the upper right and left extremities and can cause an aggravation of the disease condition from which the clamant, Mr Issa Asadi, suffers.”
Dr Perla
54.The applicant also relies on a history given to Dr Perla, who had examined him on
18 July 2007 at the request of the insurer, with the assistance of a telephone interpreter.55.In his report dated 19 July 2007, Dr Perla recorded a history that there was immediate onset of low back pain and left lower limb pain on 18 June 2006, with right leg pain occurring four weeks later, and neck pain first occurring in about January 2007. By the time of consultation, Mr Asadi was complaining of bilateral upper limb pain symptoms as well.
56.Dr Perla noted that he presented with chronic pain involving the entire spinal region, and chronic upper and lower limb pain. On examination, he found there was gross exaggeration of the condition, no indication of ongoing significant pathology and that the worker was fit for pre-injury duties.
57.Perhaps because he was not asked, Dr Perla did not express a view on whether employment had caused or aggravated disease conditions of the spine or shoulders. The relevance of his report lies in the history he took of symptom onset – particularly, onset of neck symptoms in January 2007.
Dr Bentivoglio
58.On 15 March 2016, the worker was examined by orthopaedic surgeon, Dr Bentivoglio, at the request of the insurer. He took a history that Ms Asadi had worked for four years as a farmhand after migrating to Australia in 2001.
59.He took a history of injury to the back on 18 June 2006 when Mr Asadi fell in the vineyard. He noted immediate pain in the back with symptoms radiating down the right lower limb. He noted the worker was driven to a local doctor in Mudgee, after which X-rays were taken of the back. In fact, the X-rays were limited to the lumbar and thoracic spine.
60.He noted annular tears disclosed in an MRI scan of the lumbar spine dated November 2006, with a disc bulge at L1/2.
61.Dr Bentivoglio accepted that the fall would have caused some damage to the low back, with resulting permanent weakness.
62.Mr Asadi was still suffering from low back pain, radiating to the feet. However, his findings on physical examination led him to believe there was exaggeration of the back complaint. He considered the discal abnormalities on the MRI scan to be ‘only minor’. Relying on the worker’s description of pre-injury duties as ‘not heavy’, he considered him fit to resume those duties.
63.Dr Bentivoglio examined the worker again on 26 May 2021. On that occasion, the worker told him that his duties could be heavy, and that he had sustained injury to the back, neck and shoulders. Mr Asadi reported constant back and neck pain, and pain in both shoulders.
64.In a supplementary report of 15 June 2021, Dr Bentivoglio noted that no complaints of neck or shoulder problems had been made when he first examined the worker in 2016, and that none had been made to various independent medical examiners seen from 2006 to 2010.
65.He viewed investigations of the right shoulder made 12 years after injury which showed minimal abnormalities. He considered them to be of constitutional origin and not causally related to the incident in 2006, in part because of their nature and in part because no complaint of shoulder symptoms was made to IME’s earlier, or in 2016 when last examined. He concluded there had been no injury to the right shoulder on 18 June 2006.
66.He said investigation of the left shoulder 13 or 14 years after the incident showed ‘minimal to no abnormality’. This, together with the absence of complaint of symptoms until 12 years after the fall, led him to conclude that the condition of the left shoulder did not result from the fall in 2006.
67.He said cervical spine scans similarly showed minimal abnormality some 12 years after injury and could not be related to the incident. That, plus the absence of complaint of symptoms, led him to believe that the CT scan showed natural ageing degenerative changes, not resulting from the fall in 2006.
68.In a supplementary report of 27 September 2021, Dr Bentivoglio conducted what appears to have been a file review. He noted that in early 2007, the worker had complained of neck symptoms to an occupational therapist. As six months had passed since the injury of 2006, he considered it unrelated to the fall.
69.He noted that in October 2006, the worker had complained of mid-thoracic pain to his GP
Dr Lok, who he said did not organise investigations.70.It seems that Dr Bentivoglio was unaware of the thoracic spine X-rays conducted on
11 July 2006.71.Dr Bentivoglio concluded that on 18 June 2006, the worker had injured his ‘low back region’. As at least three months elapsed before onset of symptoms in any other body part, symptoms in those areas did not result from the frank injury.
72.He added that no complaint of neck symptoms was made till about six months after injury, none of right shoulder symptoms till three years after injury, and none of left shoulder symptoms till 2018. He concluded:
“It is not plausible from all this documentation to consider this gentleman has sustained any injury to his neck or shoulders in the incident and also not plausible to consider he had sustained any injuries to this [sic] thoracic spine region.”
73.In answer to the question whether the worker aggravated a pre-existing condition of the spine or shoulders, Dr Bentivoglio said there was no evidence of pre-existing disease in the spine or shoulders. At that stage in the report, he had only discussed the frank injury of
18 June 2006. By ‘pre-existing’, I take him to mean existing prior to that date.74.In answer to a question about injuries resulting from the nature and conditions of employment, Dr Bentivoglio said that he does not consider the worker to have suffered any such injuries.
75.He assessed 7% whole person impairment (lumbar spine) as a result of the frank injury, making no deduction for a pre-existing condition.
Dr Reiter
76.On 16 December 2021, Mr Asadi was examined by rheumatologist, Dr Reiter, at the request of the insurer, with assistance from an interpreter. Dr Reiter took a history that the worker had worked at the Mudgee vineyard 12 hours per day, 7 days a week. Prior to that, he had worked at an abattoir. He did not suffer low back pain, neck pain or bilateral shoulder pain prior to the fall on 18 June 2006.
77.When he fell, he said he felt immediate pain in the lower back and feet, with pain onset in the shoulder and neck later – this history varied from hours to minutes later. Upper back pain was initially denied, then stated to have occurred variously two days later, or with the neck pain.
78.Dr Reiter agreed that the fall on 18 June 2006 may have caused intervertebral disc tears, though she found it a little unusual, given the mechanism of injury. She diagnosed severe degenerative disease affecting his spine. She attributed current severe low back pain to that degenerative disease.
79.Having regard to the inconsistencies in history, and the fact that no investigations of the cervical or thoracic spine were conducted prior to 2018, Dr Reiter did not consider that the cervical or thoracic spine was injured by the fall in 2006.
80.Her attention was not drawn to the X-rays of the thoracic spine performed on 11 July 2006.
81.With regard to the shoulders, she diagnosed degenerative rotator cuff disease evident on the ultrasounds. As they were performed 12 years after the fall, she did not consider the pathology was caused by the fall.
82.As Mr Asadi denied pain in the spine or shoulders before his fall, Dr Reiter did not consider that Mr Asadi had aggravated any pre-existing condition in the four weeks he worked for the respondent prior to his fall. She explained:
“It is not possible for Mr Asadi to have suffered or sustained an aggravation, acceleration, exacerbation and/or deterioration of any pre-existing conditions affecting any of the above listed areas in the course of his employment given that he was only there for four weeks and he clearly stated he had no pre-existing issue of musculoskeletal pain prior to his fall, with the evidence in all documentation provided overwhelmingly indicating that he only injured his lower back at the time with one brief reference by his general practitioner to his thoracic spine pain.”
83.Dr Reiter disagreed with the deduction of 1/10th made by Dr Dixon for a pre-existing condition of the lumbar spine. She considered a 50% deduction appropriate, having regard to the significant degenerative disease shown on imaging of the lumbar spine.
Associate Professor Bauze
84.The respondent relies on the report of orthopaedic surgeon, Dr Bauze, for history only.
Dr Bauze examined Mr Asadi on 24 October 2006 at the request of the insurer. He noted that the worker had worked for the respondent for a month prior to the fall on 18 June 2006. On examination, he noted tenderness in the lumbar and thoracic spine, and described symptoms of ‘low back pain all the time’ from the back to both legs and the soles of both feet. Mr Asadi told him that he had never previously had a similar problem.85.In its submissions, the insurer relies on that admission as meaning that there had not been symptoms in any body part other than the lumbar spine before the fall. That is not the history Dr Bauze took. Mr Asadi merely told him that he had not previously experienced low back pain all the time with radiation to the soles of both feet. It is not admission with respect to any other body part. Nor does it contradict Mr Asadi’s current evidence that he suffered back strain simpliciter in the course of his work as a labourer for the respondent, prior to the fall.
Consideration
86.The respondent disputes that Mr Asadi’s work for the respondent was heavy. It relies on an admission recorded by orthopaedic surgeon Dr Bentivoglio, who examined the worker on
15 March 2016, with the assistance of an interpreter. He said, ‘Mr Asadi advised me his work activities in the vineyard were not heavy’. Mr Asadi provides no explanation for that admission, if indeed it was made.87.That admission, if made, relates only to his duties for the respondent. It does not appear to relate to his labouring duties prior to working with the respondent.
88.So far as it goes, it is entirely inconsistent with the nature of the duties he described to
Dr Dixon and other doctors, and in his statements to the Commission. It is necessary to determine which version is more likely to be correct.89.Dr Bentivoglio records the worker’s expression of opinion – that is, an opinion expressed by the worker that his duties for the respondent were not heavy. The doctor does not suggest that the worker denied, or even discussed, the detail of the work he did for the respondent, as revealed in his statements and the history taken by Dr Dixon. It is possible that the opinion recorded by Dr Bentivoglio reflects an error in translation, or an error on the part of the worker. I do not know. If it was the opinion expressed by the worker, I reject it as inaccurate.
I accept the detailed description of his labouring activities in his statement and the history given to Dr Dixon, as they are consistent with the duties that one would expect of a labourer in any working vineyard, and in agriculture. It is highly unlikely that his duties for the respondent were light, or ‘not heavy’.90.The worker’s evidence with respect to his labouring duties prior to working for the respondent is not contested by Dr Bentivoglio.
91.I am comfortably satisfied that his duties as a labourer, including but not limited to his duties for the respondent, were arduous, constant and repetitive.
Lumbar spine
92.Dr Dixon says that the nature and conditions of employment with the respondent caused disease conditions of the lumbar spine, which he identifies as back strain, facet arthralgia, annular tears and spondylosis which he says was pre-existing.
93.There was before the Commission a CT scan of the lumbar spine performed on
4 August 2006. It disclosed a disc protrusion and two disc bulges, but the radiologist made no mention of any degenerative changes. An MRI of the lumbar spine performed on
30 November 2006 disclosed annular tears and a disc protrusion, but no significant facet joint degeneration. A further MRI of the lumbar spine performed on 24 December 2010 disclosed multilevel degenerative changes in the lumbar spine, particularly facet joint degeneration. The radiologist observed no significant change from the most recent MRI of 2009, from which I infer that an MRI in 2009 had showed similar degenerative changes.94.Dr Bentivoglio said there was no evidence of any lumbar spine condition predating injury on 18 June 2006. These scans support that conclusion, at least with respect to degenerative change. The annular tears were probably caused by the fall itself, and represent a frank injury. By the time he ceased work on 18 June 2006, Mr Asadi does not appear to have been suffering from either facet arthralgia or lumbar spondylosis. Those conditions were evident on subsequent MRI in 2009. Dr Dixon does not say how degenerative conditions first disclosed on MRI in 2009 can have been caused by employment, in light of the lapse of time since the cessation of employment in June 2006. I am not satisfied they were.
95.That leaves the diagnosed back strain injury with post-traumatic stiffness and dysmetria. I interpret Dr Dixon to mean that symptoms of repetitive back strain, which developed in the course of Mr Asadi’s arduous duties over time, have continued despite the cessation of work.
96.Dr Bentivoglio gave no reasons for his conclusion that the nature and conditions of employment had not caused injury, but that conclusion must have been based at least in part on the history he took that Mr Asadi’s duties were not heavy. I do not accept that as an accurate history. For that reason, I give little weight to Dr Bentivoglio’s conclusion. Dr Reiter did not express an opinion on that particular issue.
97.I readily accept that Mr Asadi repetitively put strain on his lumbar spine in the course of his duties, that it caused symptoms in the lumbar spine, and that those symptoms continued despite the cessation of work. I am satisfied that the repetitive strain gave rise to a pathology which remains symptomatic, as it causes back pain, stiffness and dysmetria. I can identify no other contributor to the lumbar strain injury.
98.In those circumstances, the nature and conditions of employment with the respondent are likely to have been the main contributing factor to Mr Asadi’s back strain. There will be a referral for assessment of the lumbar spine.
99.I am also satisfied that the lumbar spine became symptomatic as a result of repetitive strain injury while Mr Asadi was still labouring for the respondent. It is highly likely that he suffered lumbar spine strain in the employ of the respondent, and that his continued labouring for the respondent until 18 September 2006 made the pain worse.
Dr Reiter concluded that there cannot have been an aggravation of a previous condition, because the back was not symptomatic prior to injury on 18 June 2006. I do not know why the worker gave her the history he did. It is possible that there were language issues, that he did not fully understand what was being asked, or that his memory was less reliable than it was around 2006. I simply do not know. For the reasons already given, I am satisfied that, notwithstanding what he told Dr Reiter, he did in fact experience lumbar spine symptoms during the course of his employment, as one would expect given its nature. For that reason, Dr Reiter’s conclusion was based on an incorrect history, and I give it little weight.
I find that the nature and conditions of employment with the respondent aggravated and caused to deteriorate the worker’s lumbar spine strain.
In written submissions, the worker relies also on s 15 of the 1987 Act. That section provides that, where an injury is a disease of such a nature as to be contracted by a gradual process, compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due. As a majority of the High Court found in Smith v Mann [1932] CLR 426 when considering a similarly worded provision under the Workers’ Compensation Act 1926, compensability does not require proof that the disease was contracted in the employ of the last relevant employer. Rather, it requires proof that a disease of gradual process was contracted in employment of a particular kind (in that case, painting work with exposure to lead), with the result that compensation is payable by the employer which last employed the applicant in work of that kind: per Starke J at 441-443, Dixon J at 448-449, and McTiernan J at 456-458. Dixon J said at 448 that the effect of the provision:
“… is to enable a worker, if in the course of his occupation he receives injury by contracting a disease by a gradual process through the nature of his occupation, to obtain compensation from the employer in whose employment in that occupation the worker is at the time of his incapacity, or, who last before his incapacity so employed him …”
Repetitive back strain of the kind diagnosed by Dr Dixon is, by its nature, a disease of gradual process. Because it is caused by repetitive strain, employment in heavy labour of the kind performed by the applicant from 2002 to 2006, and in the respondent’s vineyard in 2006, is employment to the nature of which the disease is due. There is no evidence the applicant did any labouring work before 2002. He said he was a shop keeper in Afghanistan. It is likely that the strain injury was contracted in the course of and arising out of his occupation as a labourer, and that his employment as a labourer was the main contributing factor to him contracting the disease condition. The respondent was the last employer to employ the applicant in labouring work. For that reason also, the respondent is liable to pay compensation in respect of injury to the lumbar spine.
Thoracic spine
With respect to the thoracic spine, Dr Dixon identifies thoracic back strain with post-traumatic stiffness and interscapular (thoracic) pain. I readily accept that Mr Asadi repetitively put strain on his thoracic spine in the course of his duties, and that it caused symptoms in that body part during his employment. The referral of the thoracic spine for X-ray on 11 July 2006 – unknown to Dr Bentivoglio and Dr Reiter – is compelling evidence that he continued to suffer thoracic symptoms in the weeks following the cessation of work. There is no evidence of any intervening stressor. I am satisfied that a pathology in the thoracic spine, described as strain injury, was caused by repetitive strain in the course of Mr Asadi’s heavy duties for the respondent, and that the symptoms continued after the cessation or work. It follows that the strain injury was caused by the nature and condition of employment with the respondent. There will be a referral of the thoracic spine for assessment.
I am similarly satisfied that the thoracic spine became symptomatic while Mr Asadi was still labouring for the respondent, as a result of repetitive strains upon the thoracic spine. It is highly likely that he suffered thoracic spine strain in the employ of the respondent, and that his continued labouring for the respondent until 18 September 2006 made the pain worse.
I find that the nature and conditions of employment with the respondent aggravated and caused to deteriorate the worker’s thoracic spine strain.I can give little weight to the contrary opinions of Dr Bentivoglio and Dr Reiter, because neither was aware of the referral of the thoracic spine for X-ray on 11 July 2006, because
Dr Bentivoglio relied on an incorrect history that the work was not heavy, and because
Dr Reiter relied on an incorrect history that there were no symptoms prior to June 2006 – none of which reflects adversely on either doctor. They can only express opinions on the history given to them.Section 15 also operates to fix the respondent with liability for thoracic back strain, for the same reasons as expressed above in respect of lumbar spine strain.
Cervical spine
Dr Dixon diagnoses neck strain injury with lower cervical pain and tenderness and small central disc protrusion at C3/4 and C4/5. The first objective evidence of the disc protrusions was a CT scan of 26 March 2018. I am satisfied that Mr Asadi complained of neck symptoms in early 2007, as he told Dr Perla. In one of his statements, he mentioned pain onset at Christmas 2006, and I accept this as it is conceivably consistent with complaint in early 2007.
The evidence does not establish whether disc protrusions of the kind observed on the scans can be caused by a disease of gradual process. However, neck strain injury diagnosed by
Dr Dixon is by its nature a disease of gradual process, because it is caused by repetitive strains. Heavy and repetitive labouring work of the kind performed by the applicant from 2002, including his work in the respondent’s vineyard, is employment to the nature of which repetitive strain injury is due. I am satisfied that his employment as a labourer was the main contributing factor to the contraction of the disease. The last employer to have employed the work in that kind of work was the respondent. For that reason, the respondent is liable to pay compensation in respect of the neck strain injury.
Shoulders
With respect to the shoulders, Dr Dixon diagnoses bilateral shoulder brachalgia with trapezial muscle pain with stiffness and subacromial bursitis and supraspinatus tendinopathy. Brachalgia is a reference to neuropathic pain in the shoulders caused by the pinching of nerves in the cervical spine. The other pathologies are directly referable to pathology in the shoulders themselves. These pathologies were first demonstrated by CT scan and ultrasound in 2018, but Mr Asadi gave evidence, which I accept, that he experienced shoulder pains while labouring. There is evidence that he complained of upper limb symptoms to Dr Perla in July 2007. The mere fact that he did not complain of shoulder symptoms between ceasing work in June 2006 and seeing Dr Perla in July 2007 does not prove the absence of symptoms, even though I note he had the opportunity to complain of symptoms to other doctors. I accept that he had serious language difficulties notwithstanding the assistance of interpreters from time to time, and was most focussed on his back pain.
Subacromial bursitis and supraspinatus tendonitis are shoulder pathologies of a kind which can be contracted by a gradual process. I am satisfied that they were probably contracted as a result of Mr Asadi’s occupation as a labourer between 2002 and 2006, and that his employment in heavy labour of the kind he performed in that period was the main contributing factor to the contraction of these conditions. His employment as a labourer was employment to the nature of which the disease is due. He does not have to prove that the bursitis and tendonitis was caused by his employ with the respondent, though as they were symptomatic while he was working in the vineyard at Mudgee, it seems likely that it was so caused. In any event, the respondent was the last employer to employ the applicant in employment as a labourer, to the nature of which the disease is due.
It follows that the respondent is liable to pay compensation in respect of the diseases of the shoulder to which I have referred.
SUMMARY
For the reasons given, I am satisfied that the nature and conditions of Mr Asadi’s work for the respondent both caused, and aggravated and caused to deteriorate, disease conditions of the lumbar and thoracic spine.
I am also satisfied that his employment as a labourer from 2002 to 2006 was the main contributing factor to disease conditions of the lumbar spine, thoracic spine, cervical spine and both shoulders, that his employment as a labourer was employment to the nature of which those diseases are due, and that the respondent was the last employer to employ the worker in employment of that kind.
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