Biffin v Scientrific Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Biffin v Scientrific Pty Ltd [2024] NSWPIC 479
APPLICANT:	Teresa Mary Biffin
RESPONDENT:	Scientrific Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	28 August 2024
DATE OF AMENDED DECISION:	7 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and lump sum compensation; accepted injury to right shoulder and bilateral wrists; disputed injury to left shoulder and cervical spine; whether applicant has no current work capacity and whether bookkeeper role is suitable employment; Held – the applicant sustained injuries to her left shoulder and cervical spine; the applicant has no current work capacity; the respondent is to pay weekly benefits compensation; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injuries to her cervical spine and left shoulder in the course of employment with a deemed date of injury of 12 June 2018 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant’s claim for lump sum compensation is to be remitted to the President for referral to a Medical Assessor for assessment. 3. The applicant has no current work capacity from 22 January 2021 resulting from injuries sustained in the course of employment and is likely to continue indefinitely to have no current work capacity. 4. The applicant has entitlements to weekly payments of compensation pursuant to s 37 of the 1987 Act from 22 January 2021 to 30 July 2023 at the rate of $694 (subject to indexation). The Commission orders: 1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 12 June 2018 (deemed). Body systems/parts: right upper extremity (shoulder, wrist); left upper extremity (shoulder, wrist); and cervical spine. Method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, (b) Reply and attached documents, and (c) This Certificate of Determination. 3. The respondent is to pay the applicant weekly benefits compensation pursuant to s 38 of the 1987 Act as follows; (a) $555.20 from 22 January 2021 to 31 March 2021; (b) $560.00 from 1 April 2021 to 30 September 2021, (c) $566.40 from 1 October 2021 to 31 March 2022; (d) $576.80 from 1 April 2022 to 30 September 2022; (e) $596.00 from 1 October 2022 to 31 March 2023, and (f) $620.80 from 1 April 2023 to 20 July 2023. 4. The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amounts referred to above. 5. The respondent will pay the applicant the sum of $47,710 pursuant to s 66 in respect of 19% whole person impairment caused by injuries to the right upper extremity (shoulder, wrist): left upper extremity (shoulder, wrist); and cervical spine on 12 June 2018.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Teresa Biffin was employed by the respondent Scientrific Pty Ltd as a packer/warehouse assistant from 2008 until her employment ceased on 12 June 2018. She sustained an injury to her right wrist as a result of repetitive tasks including repetitive and heavy manual handling of stock with deemed date of injury 12 June 2018. On 1 August 2018 she sustained an injury to her right shoulder as a result of the repetitive tasks including repetitive and heavy manual handling of stock. On the deemed date of injury 12 June 2018 the applicant sustained injuries to both her shoulders, hands, wrists, knees, neck and lower back as a result of the repetitive nature and conditions of her employment, including repetitive and heavy manual handling of stock.
Dispute notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) were issued by the respondent on 12 October 2020 with regard to the applicant’s carpal tunnel syndrome and her right shoulder injury with the effect of bringing her weekly payments to an end on 21 January 2021. The insurer made a work capacity decision that the applicant was able to work in suitable employment as a bookkeeper for 38 hours a week earning $1,057. The decision was maintained on 9 April 2021 following internal review.
A dispute notice under s 78 of the 1998 Act was issued on 31 August 2021 disputing liability for weekly benefits compensation as a result of the applicant’s carpal tunnel syndrome.
Further internal reviews were completed on 14 September 2023 and the work capacity decisions made by the insurer on 12 October 2020 with regard to the carpal tunnel syndrome and right shoulder injury were maintained. The insurer determined that the applicant was able to work in suitable employment as a bookkeeper for 40 hours a week and earn $1,057.
The applicant claimed lump sum compensation for 27% whole person impairment for her cervical spine, lumbar spine, right and left upper extremities and right and left lower extremities on 6 September 2023.
On 15 December 2023 a notice under s 78 of the 1998 Act was issued disputing the applicant’s claim for lump sum compensation for whole person impairment of her bilateral wrists, lumbar spine and/or bilateral knees.
An Application to Resolve a Dispute was lodged by the applicant in the Personal Injury Commission (Commission) on 21 June 2024 claiming weekly benefits compensation from
22 January 2021 on an ongoing basis at the average weekly earnings amount of $694, and lump sum compensation of 27% whole person impairment.
The matter was listed for conciliation/arbitration for determination of the applicant’s entitlement to weekly benefits compensation from 22 January 2021 and the dispute regarding liability for the applicant’s injuries.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the extent and quantification of the applicant’s entitlement to weekly payments and her ability to earn in suitable employment in the period 22 January 2021 to date and continuing pursuant to s 38 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) whether the applicant has sustained injuries to her cervical spine, lumbar spine, left shoulder and bilateral knees as a result of the employment.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 7 August 2024. Mr Greg Horan appeared for the applicant instructed by
Ms Sandra Aziz, legal practitioner. Mr Tom Grimes appeared for the respondent instructed by Mr Michael Twemlow, legal practitioner. Ms Coveny was present for the insurer.
During conciliation the applicant discontinued the allegations of injury to the lumbar spine and knees so that the injuries remaining in dispute are the cervical spine and the left shoulder.
Once the dispute has been determined the claim for lump sum compensation is to be remitted to the President for referral to a Medical Assessor.
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

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) respondent’s Reply and attached documents.

Oral evidence

No application was made to call oral evidence.

Applicant’s evidence

The applicant provided evidence in her statement signed on 17 June 2024.
The applicant is currently 62 years of age. She commenced employment with the respondent as a packer/warehouse assistant in 2008. She worked as a casual employee and she was on call, working up to 35 hours per week and on average approximately 22 hours per week. Her hours of work varied depending on the orders that needed to be dispatched.
The respondent provides teaching solutions and scientific equipment. The work the applicant carried out was heavy in nature and extremely repetitive. It included the manual handling of stock into boxes to be picked up by a courier.
The applicant started by assembling the boxes, filling them and lifting the boxes to tape them. She then moved them into the collection area for the courier. This was repeated multiple times a day.
The boxes assembled, packed and carried by the applicant could weigh up to 30kg and at times there were in excess of 10 boxes in one order. She packed up to hundreds of kilograms of stock per order.
She took stock out to trucks and she did inventory checks which involved lifting and bending. Her duties included putting pamphlets and booklets into envelopes, up to hundreds per day, to advertise the respondent’s business and she repeatedly reached and sat for days on end.
Due to the repetitive nature and conditions of her work the applicant began to develop gradual onset numbness and tingling in her right wrist in late 2017 and early 2018. She eventually went to the doctor, had scans and then made a claim.
The applicant consulted her general practitioner Dr McCarthy about her pain and discomfort and was referred to Dr Genon, orthopaedic surgeon, on 28 November 2017.
A nerve conduction study was carried out by Dr Maxwell on 9 January 2018 which showed both hands had sensory deficits, severe on the right hand and moderate on the left, and surgery was recommended for both wrists.
She formally reported the numbness and tingling in her right wrist to the respondent on
26 March 2018, which by this time was causing sleep disturbance.
Dr Genon advised the applicant on 29 March 2018 that she had bilateral hand pain, features of carpal tunnel syndrome and motor and sensory conduction deficits predominantly in the right hand. Dr Genon referred her for bilateral carpal tunnel release surgery. She had surgery on her right wrist on 13 June 2018.
Following surgery the applicant had a staph infection to the surgical wound and decided not to have the left wrist surgery.
On 12 June 2018 the applicant’s employment was terminated as the respondent did not have an alternate role for her to undertake with lighter duties.
An ultrasound of the applicant’s right shoulder and upper arm was carried out on
13 July 2018. This showed she had a full thickness tear to the anterior aspect of the supraspinous tendon. She consulted Dr Mison, orthopaedic surgeon, about her right shoulder rotator cuff tear on 16 August 2018.
Dr Mison did not recommend surgery. He told the applicant she would not be able to return to her current duties as this could result in re-tearing the rotator cuff. He suggested she change her occupation to a more sedentary role.
The applicant had regular physiotherapy treatment with Mr Daniel Mandi at FluidPhysio and Gym in Yamba from 17 October 2018 until 5 December 2019 when the insurer believed an exercise physiologist was the most appropriate clinical transition going forward. On
30 December 2019 she saw Mr Aaron Pateman, exercise physiologist, who she continued to see until 4 March 2020.
Dr McCarthy went over the results of an X-ray of the applicant’s right and left hands and wrist with her on 29 November 2018 and diagnosed the applicant with bilateral osteoarthritis in her hands.
An MRI of her lumbar spine on 13 May 2019 showed annular tears at L3/4 and L4/5.
Dr Mison advised the applicant on 9 June 2022 that her shoulder symptoms had reduced due to ceasing work in her previous capacity and she is not suitable for further work in a physically demanding role.
The applicant received weekly benefits compensation until 22 January 2021 when the insurer determined she was able to work in suitable employment for eight hours a day five days a week.
The applicant’s evidence is that the insurer has made the decision that she is able to work in sedentary employment, however her pre-existing severe hearing impairment makes it difficult to answer phones and communication is impaired. She also suffers back, neck and wrist pain and discomfort making it difficult for her to undertake any employment.
She outlines in her statement that she was certified by Dr McCarthy as fit for some type of employment with regard to her right shoulder between 19 February 2019 initially for 20 hours per week, then 30 hours per week increasing to 40 hours per week from 1 August 2019.
She was fit for some type of employment from 9 June 2021 to 9 July 2021 for 40 hours per week, for eight hours per week from 27 February 2019 to 27 March 2019, 24 hours per week from 27 March 2019 to 22 July 2020 and from 2 September 2020 to 12 May 2021 with increased weight restrictions. She was then unfit for work from 13 May 2021 to 26 July 2021 due to her hearing impairment.
As a result of her employment with the respondent the applicant’s evidence is that she suffers with injuries and disabilities and pain to her wrists, her right shoulder, her neck, lower back and both knees, and restricted range of movement in her shoulder and both knees.

Dr Bodel

Dr Bodel prepared a report for the applicant’s solicitors dated 28 June 2023. He includes in the history provided to him that the applicant has not been able to return to work elsewhere, that she tried some office work at a community transport company and at the Maclean Golf Club but this only lasted a few weeks because of pain. He also notes she has hearing loss and tinnitus which makes it difficult for her to do office-based work.
Dr Bodel diagnoses degenerative disc disease in the cervical spine and lumbar spine, rotator cuff pathology in both shoulders, clinically evident carpal tunnel syndrome in both wrists with surgical repair on the right-hand side with a good outcome. The left-hand side has mild symptoms not sufficient to warrant surgery on the basis of her clinical presentation. She also has anterior knee pain and retropatellar articular cartilage damage.
Dr Bodel says the injury is the aggravation, acceleration, exacerbation and deterioration to these various disease processes caused by the nature and conditions of work. Work in the doctor’s opinion is the main contributing factor to the injury to the applicant’s neck, shoulders, hands, back and knees.
With regard to capacity Dr Bodel is of the opinion the applicant has restricted capacity for work because of her widespread residual disability associated with the injury and she is not fit for her pre-injury style of work which was quite heavy.
In the doctor’s opinion she may be able to be retrained in lighter duty work but she was at that time 61 years of age and for all intents and purposes he says she is probably totally and permanently incapacitated for work for which she has appropriate levels of education, physical fitness, training and experience.
It is most unlikely in Dr Bodel’s opinion that the applicant would be able to return to unrestricted pre-injury work duties. The likelihood of her returning to work of any type in the foreseeable future is very remote. Her current capacity for work is essentially nil.
Dr Bodel refers to the vocational assessment that indicates the applicant may be able to work as a bookkeeper and administrative services assistant but he says she would really need training for this. His opinion is that if it does require any repetitive use of the arms then it would be unwise as that will aggravate her symptoms. He also notes she has great difficulty with this because of a previous hearing impairment and that is the main reason why she has not tried any of these activities.
The doctor disagrees that the applicant has capacity to work eight hours a day five days a week on the basis of her clinical presentation.
Dr Bodel makes the assessment of 27% whole person impairment; 7% for the cervical spine, 5% for the lumbar spine, 9% for the right upper extremity, 3% for the left upper extremity and 4% for the right and left lower extremities.

CDC Services Vocational Assessment Report

Mr Ross Girdler provided a Vocational Assessment Report to the applicant’s solicitors dated 6 June 2023.
His conclusion is that the applicant’s injuries limit her vocational alternatives. He notes that since she discontinued clerical work there have been six new versions of the Microsoft Office suite, a similar number of changes to Microsoft Word, and the introduction of cloud-based storage arrangements such as OneDrive and applications such as Xero. Internet Explorer has been replaced by Google Chrome and the applications associated with it are likely to be completely foreign to her.
Mr Girdler finds that vocational training could potentially assist the applicant to mitigate her loss.
She has the ability to type, a skill that survives these changes, however that is no longer applicable for prolonged periods due to her compensable injuries. The attempt to provide Xero cloud-based bookkeeping computer skills failed due to inadequate accommodation for her hearing loss.
The conclusion he reaches is that her impairments substantially reduce the likelihood that she could secure employment and her chances of doing so are negligible.
Setting aside the need for special arrangements to accommodate her hearing loss, she will also need to identify an employer willing to agree to potentially expensive workstation modifications and changes to work practices to avoid excessive keyboard use.
He notes that as she is now over 60 years of age and has a condition which is vulnerable to re-injury it is unrealistic to suggest she could succeed. In Mr Girdler’s opinion she is not capable of sustaining work in the occupations deemed suitable for her.

Dr Mison

Dr John Mison, orthopaedic surgeon, provided a report to Dr McCarthy dated
16 August 2018. The applicant is being treated for bilateral carpal tunnel syndrome and recently had her right side decompressed. The left side symptoms are not as severe and she is holding off on that side for now. Her right shoulder has settled down somewhat since she has been off work and he refers to a small rotator cuff tear on the background of more chronic tendinosis. In his opinion the applicant should seek a change of occupation for a more sedentary one.
Dr Mison reported on 9 June 2023 to the applicant’s solicitors. His opinion is that she is not suited for further work in a physically demanding role and she would be very prone to flaring her right shoulder again.
Her incapacity is the result of accumulated injuries over time to the right shoulder from her workplace and her employment was a substantial contributing factor.

Certificates of capacity

Certificates of capacity dated 1 February 2019 to 26 July 2021 are attached to the ARD.
With respect to the period 22 January 2021 to date, Dr McCarthy certified the applicant as having capacity for some type of employment between 2 December 2020 and 12 May 2021 for eight hours a day five days a week with restrictions due to bilateral carpal tunnel syndrome.
The applicant was certified as having no current work capacity between 13 May 2021 and
26 June 2021 due to her carpal tunnel syndrome, and she was unable to work in a warehouse or in administration due to hearing impairment. She was certified as having no current capacity to 26 July 2021.
With regard to her right shoulder, Dr McCarthy certified the applicant as having capacity for some type of employment between 15 December 2020 and 18 April 2021 for eight hours a day five days a week with restrictions due to right shoulder rotator cuff tear – supraspinatus, full thickness.

The applicant was certified as having no current work capacity between 19 April 2021 and
26 June 2021 and as being unable to work in a warehouse or in administration due to hearing impairment. She was certified as having capacity to work for eight hours a day five days a week from 9 June 2021 to 9 July 2021 with regard to her right shoulder injury.

Other evidence

The X-ray of the applicant’s pelvis, both hips and right knee is dated 23 April 2024.
Dr John Mulholland, treating neurologist, notes on 9 January 2018 the applicant has severe carpal tunnel syndrome on the right in particular.
The ultrasound of the applicant’s right shoulder and upper arm dated 13 July 2018 shows a full thickness tear.
Roger Clancy, audiologist, reported on 30 November 2021 that the applicant has severe sensorineural hearing loss in both ears.
Dr Ahmed Eltaib, general practitioner, reports on 19 April 2024 in relation to a total and permanent disability application and agrees with Dr Bodel’s report.
Mr Daniel Mandi, physiotherapist, of FluidPhysio and Gym treated the applicant’s shoulder injury from about October 2018 and booked her in with their exercise physiologist Mr Aaron Pateman in December 2019. He notes work placement was not working due to her hearing difficulties with 50% of work on the phones, the applicant was finding another placement and the insurer wanted her to go back to labour intensive work. He notes on 5 December 2019 that hearing is still a barrier.
Dr Mison’s medical records for treatment of the applicant’s right shoulder injury are attached to the ARD, as are Dr Genon’s medical records relating to his treatment of the applicant’s bilateral hand pain.
The medical records of Dr McCarthy, general practitioner, printed on 21 June 2021 are also attached to the ARD.

Respondent’s evidence

The respondent’s dispute notices dated 12 October 2020, 31 August 2021,
14 September 2023 and 15 December 2023 are referred to above.

Hoys Work Health Vocational Assessment Report

The vocational assessment report of Ms Michelle McShane of Hoys Work Health was provided to the respondent on 11 September 2020. At that time the applicant was certified as having capacity to work 40 hours a week with restrictions.
The applicant’s employment history includes working as an administrative assistant in 1992, as a legal secretary between 1993 and 2000, for the Australian Electoral Commission during elections between 1992 and 2018, and with the respondent between 2008 and 2018.
The applicant’s education and training includes a Certificate III in Business obtained in 2008 and a diploma in Administrative and Secretarial Study. Her computer skills are listed as experience with Microsoft Office products, email and internet. She has approval to undertake training in Xero and MYOB bookkeeping software products.
The vocational options identified as most viable considering the applicant’s vocational interests, skill base, preparedness, capacity for undertaking further education and functional limitations are bookkeeper and administrative services assistant/clerk.
Retraining is noted as being required for the bookkeeper role as either extensive experience or a formal qualification in accounting or a related field is needed. Two employers were contacted, one of whom shared that training is required and that she had completed Bookkeeping and Accounting training at TAFE as well as training in MYOB, and the second indicated that experience with accounts is looked upon favourably although on the job training may be provided. This vocational option currently met the definition of suitable employment.
The recommended actions were that training is required in order to upskill and make the applicant competitive within the job market in Xero and MYOB with assistance to enrol in training, and that a work trial is sourced as a bookkeeper to provide relevant skills and work history and to demonstrate the applicant’s competence within that role.

Dr Millons

The respondent obtained a report from Dr Millons, general surgeon, dated 17 October 2023.
Dr Millons notes the applicant’s employment history as including leaving school at 15 years of age, completing a secretarial course and working as a legal secretary until she was 36 years of age when she was diagnosed with sensorineural deafness and was fitted with hearing aids. She had to stop work then as she had difficulty coping with the Dictaphone headsets, hearing aids and her hearing problems.
After raising her two sons the applicant took up the position with the respondent in 2008 as a casual packer working up to 35 hours a week.
Dr Millons notes that some move was made to further undergo some vocational rehabilitation and he referred to the report from Hoys Work Health. Her hearing problems made working as a bookkeeper or being involved with community transport ordering transport for clients very difficult. She could not resort to wearing headsets over her hearing aids and she could not cope with background noise so that telephone work was difficult.
The doctor noted that it appears the applicant tried to work as a bookkeeper at the Maclean Bowling Club for 15 hours a week but that only lasted a few weeks as she could not cope due to her hearing issues.
The pain in her right shoulder extending down the arm towards the wrist and into her neck was noted, and she has difficulty reaching up with her right upper limb and her shoulder cracks. She is still troubled by stiffness in the right wrist. There are no real issues with her left shoulder although she still gets tingling in her left hand which wakes her. The doctor refers to issues with the applicant’s lower back and knees.
With regard to the applicant’s capacity for work Dr Millons says she is not fit for pre-injury duties and she should avoid work that entails a lot of bending, lifting more than 5kg, using her arms above shoulder height or indulging in repetitive work with her hands. From an orthopaedic point of view she would be suited to light semi-sedentary work in a desk-based position, however she is unable to use headsets in a noisy environment and her hearing issues might make working in a busy office difficult.
The doctor says in a suitable position she might have been able to handle four hours work a day five days a week with these provisos.
Dr Millons agrees with Dr Bodel’s opinion that for all intents and purposes the applicant is probably totally and permanently incapacitated for work for which she has appropriate levels of education and physical fitness, training and experience. This is a reasonable take on the matter. Dr Millons notes that her hearing difficulties would make even office duties potentially difficult.
Dr Millons assesses the applicant’s whole person impairment as 23% for the cervical spine, right shoulder, right wrist, left shoulder and left wrist.

Dr Papatheodorakis

Dr Papatheodorakis prepared an injury management report for the respondent on
10 August 2021 in relation to the applicant’s carpal tunnel syndrome.
He notes the applicant had been certified as having capacity to work 40 hours a week with restrictions for a significant period before a downgrade in May 2021. The inability to work in a warehouse or in administration was noted in the certificate of capacity of 26 May 2021 to be due to hearing impairment, a non-compensable condition.
He deemed the previous certificates documenting 40 hours a week with restrictions as still reasonable and appropriate restrictions on an ongoing basis, and the identified and confirmed suitable employment options of bookkeeper and administrative services assistant/clerk as still deemed valid.

Lists of payments

The insurer’s list of payments for the applicant’s carpal tunnel syndrome shows payment of weekly benefits compensation from 4 June 2018 to 21 January 2021.
The insurer’s list of payments for the applicant’s right shoulder injury shows payment of weekly benefits compensation from 27 August 2018 to 21 January 2021.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant’s submission is that the bookkeeping role is not suitable employment. This is particularly so in view of her age, education, skills and work experience in the definition of suitable employment in s 32A of the 1987 Act, and having regard to the specialist medical evidence from both Dr Bodel and Dr Millons.
That evidence is that for all intents and purposes the worker is totally incapacitated for work for which she has appropriate levels of education, physical fitness, training and experience.
Dr Bodel is of the view that a return to any type of work would be very remote.
Dr Bodel describes her current capacity as “essentially nil.”[1] He comments specifically on the bookkeeping role in his report and says she would need training for this. He indicates that if it involves any repetitive use of the arms then it would be unwise as it will aggravate her symptoms.
[1] ARD page 68.
Mr Ross Girdler, a rehabilitation consultant, is of the view that the applicant’s work experience and education levels in respect of clerical matters would require bringing her up to date. The applicant worked as a legal secretary for more than a decade but that work concluded in the 1990s.
The applicant submits that up until about 1997 or 1998 when she had her experience as a legal secretary it was not standard practice for the internet, computers and software to be used as they are now. The evidence from Mr Girdler is that she would need to retrain and be upskilled in respect of software programmes including Xero and Excel, and that training has not occurred.
There was some attempt to train the applicant in the Xero programme, but unfortunately proper subtitling was not part of the online programme and she was unable to understand it because of her severe hearing loss. The upshot of Mr Girdler’s report is that she does not currently have sufficient skills, education and training to do bookkeeping work and it is not suitable employment for that reason.
In addition the applicant has medical restrictions as a result of her compensable injuries.
The keyboarding requirements of the bookkeeping role would involve prolonged use of her hands, which Dr Millons certainly indicates would be problematic.
Dr Millons says “[s]he is not fit for her pre-injury duties. She should avoid work that entails a lot of bending, lifting more than 5kg, using her arms above shoulder height or indulging in any repetitive work with her hands”.[2]
[2] Reply page 11.
The applicant’s submission is that repetitive keyboarding is a base requirement for the bookkeeping role and the medical evidence indicates that is not suitable duties for the applicant.
The combination of the opinions of Dr Bodel and Dr Millons is that the applicant’s medical capacity together with her current skills, education and training are not sufficient for her to do the bookkeeping role.
Dr Kurstjens, general practitioner, recorded on 26 May 20221 that the applicant “doesn[‘]t think she can work as bookkeeper as suggested by workcover [sic], did bookkeeping course, she struggled with it”.[3] It was on that date the certificate of capacity was changed from being fit for suitable duties, particularly bookkeeping, to the applicant having no capacity for work. The certificate then indicates that an independent medical examination should take place.
[3] ARD page 478.
The applicant’s submission is that in assessing whether there is any capacity for work, that particular clinical note indicating that an independent medical examination should take place with certification of no work capacity on and from 26 May 2021 considered with the later reports of Dr Bodel and Dr Millons together with Mr Girdler’s report show that at all material times from 22 January 2021 onwards the applicant has had no capacity for work.
The evidence establishes that bookkeeping is not a suitable role and the insurer’s work capacity decision that bookkeeping was a suitable role should be rejected.
The certificate evidence from May 2021 together with the reports of Dr Bodel and Dr Millons show that the applicant was totally incapacitated for work from January 2021 onwards and she should be awarded 80% of her pre-injury average weekly earnings (PIAWE) from that time.
With regard to whether the applicant sustained an injury to her cervical spine, the applicant is 62 years of age, she started as a warehouse assistant with the respondent in 2008, the work was heavy and extremely repetitive, and she had not engaged in physical manual labour prior to that time.
The job involved filling, lifting and moving heavy boxes that could weigh up to 30kg each, with other repetitive work including the placement of pamphlets in envelopes and other manual handling to do with inventories and stock checks. Clearly it was work that involved heavy, repetitive use of her upper limbs and her spine in terms of lifting, bending and carrying boxes.
She did that work on average about 22 hours per week and up to 35 hours in some weeks.
Her employment was terminated on 12 June 2018. At that time she had recently had a right carpal tunnel release procedure which was part of a workers compensation claim and paid for by the insurance company. She also had issues with respect to the right shoulder which she says occurred gradually but dated from about 2012 onwards. The evidence is she did not do much about that until 2018 when it became particularly problematic.
Dr Bodel in his report of 28 June 2023 diagnoses degenerative disc disease in the cervical spine together with rotator cuff pathology in both shoulders and carpal tunnel syndrome in both wrists. He indicates that work was the main contributing factor to the aggravation of those diseases.
Dr Bodel assesses 7% whole person impairment associated with the cervical spine, 9% associated with the right upper extremity (shoulder and wrist), and 3% associated with the left upper limb.
The applicant also relies on Dr Millons’ well-reasoned report dated 17 October 2023. The doctor’s view is that the lumbar spine and the condition of the knees were not causally related and the applicant has taken account of that opinion in her decision to discontinue those parts of the claim.
Dr Millons in relation to the cervical spine says she has pain across the top of her right shoulder extending down the arm towards the wrist, the pain spreads up into the neck and the neck is somewhat stiff.
The applicant’s submission is that this description of the site of the pain in respect of the shoulder and right limb extending up into the neck or spreading up into the neck with a stiff neck is the type of cervical condition, with pain spreading from an accepted body part, that can be referred to a Medical Assessor even with uncertainty as to the exact nature of the injury.
Dr Millons says “[t]here is no spasm or tilt of the cervical spine. Her neck exhibits a good range of movements with a complaint of some discomfort on laterally flexing the head to the right.”[4]
[4] Reply page 80.
There is also an examination of both upper limbs including the right shoulder, the left shoulder, the wrists and hands.
Turning to the doctor’s diagnoses, Dr Millons notes problems with the right shoulder were first diagnosed in 2012 with evidence of some subacromial impingement. He then goes on to say there is some subacromial impingement in the left shoulder which probably reflects a somewhat inactive lifestyle.
Dr Millons comments;
“[a]s I see it, the issues which might relate to the nature and conditions of her work which were moderately heavy and demanding are in relation to the right shoulder, with perhaps some consequential issues with her left shoulder and bilateral carpal tunnel issues. There may be some secondary consequential issues with the cervical spine.”[5]
[5] Reply page 83.
Dr Millons deals specifically with his opinions and provides his analysis. He concludes that the applicant’s employment “then can be considered to be the main contributing factor to the right shoulder, possibly left shoulder, and both wrists.” He goes on to say “I believe that the employment was the main contributing factor to the aggravation of issues with her shoulders, wrists and cervical spine.”[6] Having spent a page or so analysing those matters, that is his ultimate conclusion.
[6] Reply page 84.
Dr Millons says the aggravation to her issues with the shoulders, wrists and cervical spine have not resolved, the symptoms are continuing, they appear to be work-related and are not specifically the result of natural progression of a degenerative process.
Commenting on Dr Bodel’s assessments, Dr Millons says “I accept the neck, shoulders and hands as being reasonably related to her work, but tend to exclude the back and knee issues. They are coming on after she had left work.”[7]
[7] Reply page 86.
The applicant’s submission is that Dr Millons has had regard to the heavy manual work the applicant was undertaking with the respondent and he accepts the applicant’s description of the symptoms as spreading up from the right shoulder to the neck region in coming to his conclusion that those particular body parts are related.
There is no medical evidence that opposes Dr Millons’ opinion, or those parts of Dr Bodel’s report with which Dr Millons generally agrees.
Dr Millons’ assessment of whole person impairment of the neck, shoulders, hands and wrists are slightly higher than Dr Bodel’s assessment. The applicant’s submission is that those body parts ought to be referred for medical assessment.
In summary, the applicant’s submission is that late in life the applicant commenced in a store person/warehouse assistant role, a heavy role involving repetitive activities that included repetitive use of her hands, arms and upper spine for the purpose of bending and reaching and the sort of activities that go hand in hand with manually handling and preparing heavy boxes of product. In those circumstances the applicant is presenting a commonsense case that she has problems with those body parts that are reasonably related to her work, and
Dr Bodel and Dr Millons have both formed that medical opinion.
The applicant’s submission is that there is no good reason to reject those medical opinions. Dr Millons has clearly considered in detail the issues of the particular body parts and their causal relationship to the nature and conditions of the work, a more nuanced opinion than that of Dr Bodel in this case, and his analysis and the care he has taken in forming that opinion is impressive. Dr Bodel’s and Dr Millons’ opinions together carry a lot of weight when combined with respect to the body parts being pursued by the applicant.
A submission was also made in relation to a proposed alternative deemed date of injury. The respondent indicated the more recent authority of Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 was to the contrary of the submission and this submission was withdrawn.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The respondent notes the allegations in the ARD are in relation to the nature and conditions of employment causing injuries to bilateral shoulders, hands, wrists, knees, neck and lower back due to repetitive and heavy manual handling of stock.
There is no claim for a consequential condition to the neck in the pleadings and nothing in the applicant’s statement to support such an injury.
Looking first at the left shoulder, the allegation of injury is due to the nature and conditions of employment or aggravation of disease.
The applicant’s statement makes absolutely no mention of the circumstances of an injury to the left shoulder. Under the heading of medical treatment, injuries and disabilities there is reference to the right shoulder and range of movement, and the neck and right shoulder girdle pain however there is no mention of symptomatology or treatment of the left shoulder.

There is no reference to symptomatology or treatment of the left shoulder while the applicant is still employed by the respondent before June 2018 or thereafter.
Dr Bodel makes no reference to the left shoulder in his examination and he refers to impingement in the right shoulder and tendons in the rotator cuff on the right but not the left.
Dr Bodel diagnoses rotator cuff pathology in both shoulders but makes no assessment in relation to the left shoulder.
The applicant has not referred to any treating evidence whatsoever with regard to support for injury to the left shoulder. None of the certificates of capacity make reference to the left shoulder and there is no reference to the left shoulder in Dr McCarthy’s notes prior to June 2018. Fortunately, the applicant has not undergone any investigations in relation to the left shoulder.
Dr Millons provides no explanation as to when the left shoulder injury came on during employment. He reports that the applicant has no real issues with her left shoulder. He refers to the range of motion but those measurements are unsurprising given the applicant is 62 years of age.
Based on the lack of treating evidence, the lack of evidence in the applicant’s statement and the lack of history in both Dr Bodel’s and Dr Millons’ reports to explain any finding with respect to the left shoulder, the respondent’s submission is that there is no evidence of aggravation to the left shoulder as a result of the applicant’s employment.
With regard to the cervical spine, in the applicant’s statement the only reference to the neck is that she says she suffers back, neck, wrist pain and discomfort, making it difficult to take any employment. There is no specification as to when this neck pain came on. In relation to the circumstances of injury, there is a complete absence of reference to the neck or explanation of when the neck injury came on.
Under the heading medical treatment there is no reference to any treatment in respect of the neck, whether from the general practitioner, specialist or physiotherapist, or of any investigation. There is nothing in the applicant’s statement that provides evidence of the onset of neck pain, restrictions or symptoms during her employment.
Again there is no mention of the neck in the certificates of capacity, in the notes of
Dr McCarthy or of any investigations of the neck. There is no reference in any of the treating orthopaedic specialist reports from Dr Genon either before or after ceasing work regarding the neck.
The applicant was treated by Dr Mison, orthopaedic surgeon, for the shoulder problems and with Dr Maxwell, neurologist, with no mention of the neck. There was extensive therapy from Mr Aaron Pateman which made no reference to the neck and there is no treating practitioner support for the opinions of Dr Bodel and Dr Millons in relation to the neck, or its onset or treatment in the applicant’s statement.
Dr Millons gives a history of problems with the right shoulder and carpal tunnel syndrome and the attempts made to have a vocational return to work in December 2019. The doctor refers to compensation payments ceasing in 2021 but there is no reference to when the neck injury came on and what treatment was provided to the neck.
Dr Millons records that the applicant enjoys bodyboarding and when she is in the water her symptoms seem to ease. He then says there is no spasm or tilt of the cervical spine, it exhibits a good range of movements with a complaint of some discomfort on laterally flexing the head to the right.
The respondent’s submission is that this not a significant finding on examination, and not a significant disability that would support an injury given the history. The frequent daily bodyboarding where the applicant is obviously arching her neck while paddling is not indicative of problems with the neck. The lack of treatment and the lack of investigations or imaging is not indicative of an injury to the neck.
The respondent submits that the opinions of Dr Millons and Dr Bodel should not be accepted. These opinions clearly give the applicant the benefit of the doubt with regard to the neck but contain no analysis of when the neck injury came on, symptomatology or treatment.
Dr Bodel says over time the applicant developed pain in the lower part of the back, the neck and both wrists but there is an absence of an explanation for this from the applicant in her statement.
The history provided is not supported by any other evidence in the respondent’s submission. Without supporting evidence in the applicant’s statement Dr Bodel’s diagnosis of degenerative disc disease of the cervical spine should be dismissed. There are no investigations, no imaging in support of that diagnosis and certainly no treating evidence to support symptomatology of the injury.
Turning to work capacity, the applicant must fulfil the requirements under s 38(2); she must have no current work capacity which is likely to continue indefinitely.
The respondent’s submission is simply that the applicant has work capacity. It is clear the applicant has hearing loss issues that are not pleaded against the respondent and which are not due to the respondent. That is not in question looking at the totality of the evidence.
The respondent’s submission is that the applicant’s incapacity is due to hearing loss and that is non-compensable incapacity. For weekly compensation to be payable under s 33 it must be incapacity that results from an injury.
This is relevant when applying s 32A in respect of determining suitable employment.
Section 32A says that suitable employment in relation to the worker means employment in work for which she is currently suited having regard to the nature of the worker’s incapacity, which is incapacity that results from the injury.
The certificates of capacity from April 2018 both in respect of the carpal tunnel syndrome and the right shoulder show a progression of improvement with physiotherapy and a progression of certification of greater hours all the way through 2019, 2020 and 2021.
From 12 March 2021 to 12 April 2021 the applicant is certified fit to work for eight hours five days a week on suitable duties due to carpal tunnel syndrome. From 18 March 2021 to
18 April 2021 the applicant is certified as fit to work eight hours five days in suitable duties due to the right shoulder injury.
This changes when the applicant is certified as having no work capacity in respect of the carpal tunnel and also in respect of the right shoulder in April 2021, and as being unable to work in a warehouse or in administration due to hearing impairment. The specific change is related to non-compensable hearing impairment.
In the subsequent certificate for the period 21 June 2021 to 9 July 2021 the applicant does have some capacity in respect of the right shoulder when she is certified as being able to work for eight hours five days a week with a daily restriction of less than 7.5kg lifting and carrying for the right shoulder and less than 7.5kg in respect of the right arm pushing and pulling, avoiding lifting her right arm above shoulder, and avoiding repetitive right shoulder actions. Under comments it says “OK to do community transport admin, OK to do Bookkeeper, as per RTW Plan 10/20”.[8]
[8] ARD page 795.
The total incapacity in the previous certificates was only in regard to the non-compensable hearing loss, and subsequently the applicant is then certified by the general practitioner as fit for 40 hours a week in relation to the right shoulder injury. There are no certificates after that date.
There is a subsequent certificate in respect of carpal tunnel syndrome which prevents the applicant from working due to hearing impairment. The general practitioner supported a return to suitable duties with only minimal restrictions in relation to use of the right shoulder and this would enable her to perform clerical duties in the respondent’s submission. The only change was in relation to hearing loss.
The other evidence that supports that improvement in the certification and the applicant’s ability to do suitable duties is in Mr Daniel Mandi’s physiotherapy reports.
On 14 March 2019 he refers to her strength steadily improving, her shoulder pain stabilising and she now has a pain free grip strength of 28kg on the right and 24kg on the left. She is able to lift 16kg from the floor to waist and 8kg from waist to overhead with two hands, and lift 3kg overhead with one arm.
The records include on 16 May 2019 that the applicant is “feeling much better today//100% better today, [p]ut boogie board in car today feeling good”.[9] On 29 June 2019 he notes the work placement was not working due to hearing difficulties and 50% of the work is on the phones, now working to find another placement. It is not recorded that the applicant is prohibited from doing the work from the work placement due to the pleaded injuries, it is solely in relation to the hearing impairment.
[9] ARD page 372.
Mr Pateman notes on 5 December 2019 that her hearing is a barrier to a successful return to work. On 30 December 2019 he notes the applicant had prior employment as a legal secretary and went deaf, could not do administrative work anymore, and she wears bilateral hearing aids. He also notes she had a work placement in August 2019 for six weeks answering telephone booking appointments and she did not perform well due to hearing impairment.
There is no record that the applicant was not able to do work placement due to the pleaded injuries, it is due to hearing impairment.
Mr Pateman also notes on 30 December 2019 that the applicant goes bodyboarding “most days - conservative - keeps her ‘sane’ good for mental health - stimulation daily - 2 couple hours”.[10] The respondent’s submission is that in accordance with that history of the applicant bodyboarding for two hours a day she is quite clearly able to do the job placement and is able to perform clerical duties as per the certificates.
[10]ARD page 352.
On 19 February 2020 Mr Pateman records “[h]earing loss still seems to be main barrier to finding suitable employment”.[11]
[11] ARD page 349.
On 11 September 2020 the Hoys Work Health report includes that the applicant remains physically active by swimming, body boarding, and walking each day. Her self-reported tolerances in the respondent’s submission are not related to any of the pleaded or disputed injuries. Bodyboarding requires paddling each day and reaching with her right arm in the respondent’s submission.
The Hoys Work Health report notes the applicant last worked as a legal secretary in 2000, lists her transferable skills, says the bookkeeper role is suitable for the applicant and that no specific training is required for the administration clerk role. One employer contact advised that previous employees with hearing impairment were successful in being accommodated.
Even if the respondent’s submissions as to the effect of s 33 and the non-compensable nature of hearing loss are not accepted, this is an employer who has provided validation for the applicant being able to obtain a job as an administration clerk irrespective of her hearing loss.
The second employer contact says hearing impairment should not be an issue for carrying out the position of administration clerk and there is no specific training required. In relation to the job match this report says the applicant has the skills, experience, qualifications and physical capacity. This is irrespective of accommodation of the hearing disability.
The work capacity decision of 12 October 2020 notes the certified capacity to work 40 hours per week and refers to the job market analysis from Hoys Work Health. The subsequent s 78 notice of 9 April 2021 says the roles of bookkeeper and administrative assistant services have been reviewed and confirmed as medically appropriate by Dr McCarthy on
12 August 2020. It notes the insurer is satisfied the roles of bookkeeper and administrative services assistant are appropriate with regards to the applicant’s medical restrictions as well as her age, education, skills and work experience.
Dr Kurstjens, general practitioner, notes on 26 May 2021 the applicant does not think she can work in a warehouse due to hearing impairment. This is evidence that the applicant does not think she can do pre-injury duties due to the hearing impairment.
In the s 78 notice dated 31 August 2021 Dr McCarthy is noted as providing certificates for 40 hours per week. This changed to no capacity and inability to work due to the non-compensable hearing impairment, as appears to be the case from the applicant’s own assessment made to Dr Kurstjens.
The applicant’s vocational assessment report from Mr Ross Girdler dated 6 June 2023 notes the applicant performed clerical and administrative tasks for a number of employers for approximately 10 years, she gained diploma qualifications relevant to that type of employment and due to deteriorating hearing she could no longer sustain clerical or administrative roles. The trial as a receptionist was unsuccessful due to the environment being too noisy for her to hear effectively. Again no reference is made to inability for the work in the work trial as a receptionist as being due to her compensable injuries.
This report says hearing loss can be addressed through the provision of adequate adaptive equipment, the cost of which should be obtained from an occupational therapist. The applicant’s needs associated with her injury can be addressed through work modifications and workstation modifications.
This highlights that irrespective of the hearing loss certain equipment can be provided that would be of assistance for the applicant to perform clerical roles.
Mr Girdler says the applicant’s impairments can only be accommodated with potentially expensive workstation and job modifications, and “[t]hese requirements are highly likely to act as a strong disincentive to potential employees. Her chances of successfully returning to work are negligible.”[12]
[12] ARD page 82.
The respondent’s submission is that in the Hoys Work Health report the employer contacts said they have already accommodated employees with hearing loss.
The only determination that needs to be made is whether the applicant can do a real job in accordance with Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 and the applicant’s own evidence and Mr Girdler’s report seem to indicate such jobs can be accommodated with modifications.
Dr Bodel addresses capacity and says the applicant is not fit for her pre-injury style of work which was warehousing work and quite heavy, and she may be able to retrain in lighter duty work.
The doctor then goes on to say that due to her age she is probably totally and permanently incapacitated for work and her current capacity for work is essentially nil. In his opinion she would really need training for the vocational options of bookkeeping and administrative services assistant. If it does require any repetitive use of the arms his opinion is that it would be unwise as that would aggravate her symptoms.
Dr Bodel then comments that the applicant has great difficulty with this however because of a previous hearing impairment and that is the main reason why she has not tried these activities.
In the respondent’s submission Dr Bodel does not appear to have taken a correct history that the applicant has undertaken work trials, and she did not appear to have undertaken retraining in respect of the work trials. The trials did not fail due to a lack of skills. Dr Bodel’s opinion that these particular conditions would aggravate the applicant’s symptoms also seems to fly in the face of the level of activity in relation to body boarding for two hours a day.
The respondent’s submission is that there is demonstrated success of the work trials but for the hearing impairment. With the demonstrated level of activity in the applicant’s personal life, the opinion based on the certificates, which all support 40 hours a week of suitable duties until the hearing loss issue became the main focus, should be accepted.
Finally Dr Millons provides an opinion on capacity that the applicant is not fit for pre injury duties and she should avoid work that entails a lot of bending, lifting more than 5kg, using her arms above shoulder height or indulging in any repetitive work with her hands. That opinion is somewhat consistent with the general practitioner’s notes and certificates.
Dr Millons says that from an orthopaedic point of view she would be suited to work of a light sedentary nature in a desk-based position. The respondent submits that this is also consistent with the functionality seen in the applicant’s personal life as well as with the physiotherapy notes and reports.
Dr Millons then goes on to say “[h]owever the problem that she has is with her hearing issues because she is not able to use headsets in a noisy environment. Her hearing issues might make working in a busy office difficult.”[13] This work would not be impossible however the respondent submits.
[13] Reply page 85.
The doctor then goes on to say that in a suitable position she might have been able to handle four hours work a day on five days a week with the abovementioned provisos.
It is important to note that Dr Millons’ opinion also incorporates both her left shoulder and cervical spine conditions as to her incapacity which are disputed.
Dr Eltaib’s report of 19 April 2024 includes that the applicant suffers with a left shoulder injury however there is no explanation as to when that injury came on or the treatment provided and there is also no reference to the neck in this report. The doctor basically leverages
Dr Bodel’s opinion and agrees with his report. There is no adequate history or explanation as to causation.
The doctor then provides his opinion on capacity; “I believe clinically this patient will not be able to perform physical/heavy duty jobs giving [sic] the above injuries.”[14]
[14] ARD page 94.
The respondent’s submission is that the applicant does not fulfil the requirements of s 38(2) as she is able to perform suitable work.
The respondent’s submission is that suitable duties have been identified. There is no opinion from a treating practitioner supporting total incapacity. The left shoulder and neck injuries have not been established by the applicant. The general practitioner and the physiotherapist report significant improvement in the right shoulder and wrists and there has been certification for full time suitable duties with a successful trial but for hearing loss impairment.
The applicant could still perform alternative duties in respect of the hearing loss because the employers have confirmed they have accommodated these issues in the past and there is evidence that there is equipment that can accommodate the applicant in these circumstances.
There should be an award for the respondent in respect of those two injuries and an award for the respondent in respect of the claim for weekly compensation pursuant to s 38 as the test in that regard is not satisfied.

Applicant’s submissions in reply

The opinions of the medical specialists are more relevant to the question of capacity than those of rehabilitation consultants Mr Girdler and Ms McShane from Hoys Work Health. They do not have the qualifications to give opinions about medical restrictions. The opinions of
Dr Millons and Dr Bodel as specialists and the general practitioner acting for the worker should be preferred on capacity.
Clearly in the first half of 2021 the general practitioner was of the view that there were some forms of employment in which the applicant was capable of working, and bookkeeping was one of those. That opinion changed by May of 2021 and the change is consistent the applicant submits with the evidence subsequently provided by Dr Millons and Dr Bodel which is that any work or work with medical restrictions that includes indulging in any repetitive work with her hands is not suitable.
The applicant’s submission is that bookkeeping, and the data entry requirements and keyboarding that is clearly a significant part of that particular job, would involve repetitive use of the hands.

The applicant’s medical restrictions are wider than that. Dr Millons says the applicant is not fit for pre-injury duties and should avoid bending and lifting more than 5kg and using her arm above shoulder height, as well as being unable to indulge in repetitive work using her hands.
The physical restrictions as a result of only the injuries accepted by the respondent, which includes her right shoulder and the wrists, show clearly in the applicant’s submission she is not fit for the bookkeeping role.
The respondent needs to point to a real job. It went through that exercise in the work capacity decision and ultimately came up with bookkeeping as the real job.
In the applicant’s submission that is not an appropriate type of employment given the restrictions she has with respect to her hands.
Section 38(2) requires that the worker has no current work capacity and that is likely to continue indefinitely. The applicant says that is exactly what Dr Millons and Dr Bodel conclude in relation to her capacity after taking into account her medical restrictions, age, hearing loss and so on.
The respondent’s submission that you would have regard to significant hearing disability in determining questions of her capacity should not be accepted on the eggshell skull principle which applies in respect to compensation matters.
The applicant has a significant hearing restriction that needs to be accommodated if she is to have capacity for work. It is not the only reason for her incapacity in the applicant’s submission, which is the tenor of the respondent’s submission, and that should not be accepted.

FINDINGS AND REASONS

Did the applicant sustain a cervical spine injury with deemed date of injury 12 June 2018

The applicant’s injuries to her right shoulder and bilateral carpal tunnel syndrome with the deemed date of injury of 12 June 2018 are not in dispute. The issue in dispute is whether she has also sustained injuries to her left shoulder and cervical spine.
The applicant has the onus of proving injury to her left shoulder and cervical spine on the basis of the factual and medical evidence and on the balance of probabilities.[15] Where causation is in issue what is required is a “commonsense evaluation of a causal chain.”[16]
[15] Nguyen v Cosmopolitan Homes (NSW) Limited [2008] NSWCA 246, Malec v JC Hutton Pty Limited (1990) 169 CLR 638.
[16] Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452.
The applicant has pleaded injury including to the cervical spine as a disease injury under s 4(b) of the 1987 Act.
Under s 4(b)(ii) a disease injury means the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor.
There are three components to a claim made for disease injury under s 4(b) of the 1987 Act; that there has been a disease injury, the disease injury was contracted or aggravated, accelerated, exacerbated or deteriorated in the course of employment, and employment was the main contributing factor to the contraction or the aggravation, acceleration, exacerbation or deterioration of the disease.[17]
[17] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 at [77].
Aggravation of a disease occurs where the applicant’s experience or symptoms of the disease is increased or intensified, or where the disease has been made worse in the sense of more grave, more grievous or more serious in its effects.[18]
[18] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34 at [9].
I am of the view based on the evidence that the applicant’s degenerative disc disease of her cervical spine has been aggravated, accelerated, exacerbated or deteriorated in the course of employment, and employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease.
The applicant’s statement evidence is that as a result of the employment she has injured her neck which is painful, and that she has degenerative disc disease of her cervical spine.
She describes the work she carried out for the respondent over 10 years as including manual handling of stock, with assembling, filling, lifting, taping and carrying boxes of up to 30kg being repeated multiple times a day.
She packed up to hundreds of kilograms of stock per order. She took stock out to trucks and did inventory checks involving lifting and bending. She placed up to hundreds of pamphlets and booklets a day into envelopes during advertisement. She repeatedly reached and sat for days on end.

Dr Bodel refers to the applicant developing pain in her neck over time. He notes one of her current complaints as neck pain. On examination he finds tenderness in the trapezius muscles at the base of the neck and guarding in the right side with reduced range of neck flexion, extension and rotation in all directions, most restricted on rotation to the left.
Dr Bodel’s diagnosis of degenerative disc disease of the cervical spine should be dismissed in the respondent’s submission as there is a lack of supporting evidence.
Dr Millons however also finds the nature and conditions of the applicant’s work have played a role in the development and aggravation of issues including with the cervical spine, her symptoms are continuing, appear to be work related, and are not specifically the result of natural progression of a degenerative disease.
Dr Millons accepts the neck condition as being causally related to the applicant’s work when commenting on Dr Bodel’s findings on causation.
In Dr Bodel’s opinion the applicant’s neck pain, along with her other conditions, is associated with the nature and conditions of her work in general. Work is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her injuries including the underlying degenerative disc disease in the cervical spine.
Dr Millons considers employment the main contributing factor to the aggravation of issues with the applicant’s shoulders, wrists and cervical spine. He accepts the neck, shoulders and hands as being reasonably related to the applicant’s work. There is no evidence of competing causal factors.
I accept the expert opinions of Dr Bodel and Dr Millons that the applicant suffers with degenerative disc disease in the cervical spine, that the applicant’s cervical spine disease was aggravated, accelerated, exacerbated or deteriorated in the course of employment with the respondent, and that employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration.
The respondent submits that the applicant’s statement does not provide evidence of the onset, restrictions and symptoms of her neck pain during her employment or following. In my view the applicant’s circumstances with multiple injuries, multiple investigations and the surgery to her right wrist provide the background to her evidence regarding her neck pain.
Dr McCarthy certifies the applicant’s fitness for work with respect to her bilateral carpal tunnel syndrome and right shoulder conditions. There is no reference to symptoms, complaints or treatment of the applicant’s neck pain in his clinical records.
I note generally that caution must be taken in relying on history, or in this case the lack of history, contained within clinical records of treating practitioners.[19]
[19] Mason v Demasi & Anor [2009] NSWCA 227.
It is also the case that the absence of any record of complaints by the applicant of symptoms in the relevant body parts, despite repeated consultations with her general practitioner, is not fatal to a finding of disease injury.[20] A disease injury may be established by reference to evidence including other medical evidence.
[20] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 at

There is reference made to the applicant’s neck and shoulder feeling tight particularly in the evening in the notes of FluidPhysio on 2 May 2019.[21] The focus of treatment however appears to be on the right shoulder.
[21] ARD page 374.
Dr Mison, Dr Genon and Dr Maxwell did not investigate the applicant’s neck pain. The focus of their treatment was on her right shoulder and carpal tunnel conditions.
Dr Bodel describes the applicant’s injuries including her neck pain as being of gradual onset. Carpal tunnel syndrome and surgery followed by the right shoulder rotator cuff tear along with the applicant’s complaints of pain in her lower back and knees as well as in the left shoulder and cervical spine in my view provide an explanation for a lack of focus on her neck pain which came on over time.
I agree with the respondent’s submission that Dr Millons’ finding on examination of the applicant’s neck may not be a significant finding, however this does not prevent a determination being made that she suffers with a work-related cervical spine disease injury.
The applicant tells Dr Millons when she is in the water bodyboarding her symptoms seem to ease. Those symptoms I understand to include symptoms of carpal tunnel syndrome, the shoulders, the lower back and knees as well as neck pain.
The respondent notes bodyboarding involves arching the neck while paddling and is indicative of there being no problems with the neck. While there may be some force in this submission, in the absence of evidence of the way in which the applicant bodyboards or the effect of the activity specifically on her neck, I do not accept the evidence relating to bodyboarding is sufficient to overcome the expert medical evidence regarding the applicant’s cervical spine injury.
The applicant has discharged her onus of proving she has sustained an injury to her cervical spine on the basis of the factual and medical evidence and on a commonsense evaluation of the causal chain.

Did the applicant sustain a left shoulder injury with deemed date of injury 12 June 2018

The applicant has pleaded her injuries including to her left shoulder as a disease injury with deemed date of injury 12 June 2018. She relies on evidence that her work with the respondent has resulted in the aggravation, acceleration, exacerbation or deterioration of a left shoulder disease injury.
In considering whether the applicant’s work with the respondent has aggravated, accelerated, exacerbated or resulted in deterioration of a left shoulder disease, the symptoms and restrictions must have increased and become more serious to her.[22]
[22] Cant v Catholic Schools Office [2000] NSWCC 37, (2000) 20 NSWCCR 88.
In her statement the applicant does not refer to her left shoulder, describing the symptoms and restrictions of her wrists, right shoulder, lower back, neck and knees.
Dr Bodel does not initially include the left shoulder in the history he takes relating to the injury or as a current complaint. The doctor examines the left shoulder however and records range of movement in both shoulders. He says there is no instability or impingement in the left shoulder as there is in the right shoulder.
Answering the question of ‘what was the history you obtained in relation to the injury’,
[23] Guthrie v Spence [2009] NSWCA 36 at [75].
Dr Bodel says after the carpal tunnel syndrome the applicant developed right shoulder girdle pain and later left shoulder girdle pain as well as neck and back pain and bilateral knee pain, all associated with the nature and conditions of her work in general. I accept the evidence of left shoulder pain in this medical history as evidence of fact.[23]
The doctor records complaints of pain and stiffness in both shoulders and rotator cuff pathology in both shoulders, with work the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease process.
Dr Millons comments that the applicant has no real issues with the left shoulder and that there is no real tenderness around the left shoulder. Dr Millons also examines the left shoulder and finds lower range of movement compared to Dr Bodel.
The respondent in submissions referred to the range of movement measured by Dr Millons as unsurprising given the applicant’s age of 62, however the evidence of Dr Bodel that there is rotator cuff pathology and pain in the left shoulder and the evidence regarding the left shoulder of Dr Millons do not support that submission.
The applicant’s current complaints recorded by Dr Millons include “some problems with her right shoulder, perhaps more than the left”[24] and his diagnosis includes some subacromial impingement in the left shoulder which probably reflects her inactive lifestyle.
[24] Reply page 83.
Dr Millons then comments;
“As I see it, the issues which might relate to the nature and conditions of her work which were moderately heavy and demanding are in relation to the right shoulder, with perhaps some consequential issues with her left shoulder and bilateral carpal tunnel issues.”[25]
[25] Reply page 83.
In his view the minor subacromial impingement issues in the left shoulder would possibly relate to the nature and conditions of the applicant’s work by virtue of using her left arm more to protect her right shoulder.
Dr Millons says her employment can be considered to be the main contributing factor to the right shoulder, possibly the left shoulder and both wrists. He believes her employment was the main contributing factor to the aggravation of issues with her shoulders, wrists and cervical spine.
The respondent submits that in her statement evidence the applicant makes no mention of the circumstances of an injury to her left shoulder, and she does not refer to symptomatology or treatment of her left shoulder.
Dr Millons refers to the applicant’s collection of ongoing problems. Given the nature and number of the applicant’s injuries, that the left shoulder condition has come on gradually, and her left shoulder girdle pain developed after the right shoulder girdle pain in Dr Bodel’s opinion, the absence of a record of complaints or reference to left shoulder pain in her statement is perhaps unsurprising.
The absence of a record of contemporaneous complaints by the applicant of symptoms in the left shoulder is not determinative of whether she has sustained a left shoulder injury.[26]
[26] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 at [8], [110].
Dr McCarthy does not include reference to a left shoulder injury in certificates of capacity or in his clinical records. Dr McCarthy has not referred the applicant to a specialist for review of a left shoulder or arranged for investigations to be carried out.
Dr Mison says the main reason for the referral to him was to investigate the applicant’s right shoulder injury. The doctor refers only to his examination of the right shoulder.
Dr Bodel’s opinion that the applicant’s pain in the left shoulder girdle came on some time after the right shoulder injury also provides some explanation for the lack of complaint or treatment with respect to the left shoulder.
The nature of the applicant’s work with the respondent over 10 years is likely to result in an injury such as the applicant alleges in her left shoulder. Dr Bodel describes rotator cuff pathology in both shoulders.
Considering the whole of the evidence and in particular accepting the expert medical evidence of Dr Bodel and Dr Millons I am satisfied the applicant has sustained an aggravation, acceleration, exacerbation or deterioration of a left shoulder disease injury as her symptoms have increased and become more serious.
The evidence supports the applicant’s employment with the respondent as the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the left shoulder disease injury.
The applicant has in my view discharged her onus of proving she has sustained an injury to her left shoulder on the basis of the factual and medical evidence and on a commonsense evaluation of the causal chain.

Is the applicant entitled to weekly payments as a result of compensable injuries

Under s 33 of the 1987 Act weekly payments are payable where the applicant has total or partial incapacity that results from her injuries.
The relevant injuries are to the applicant’s right and left shoulders, neck and bilateral carpal tunnel syndrome.
The applicant makes a claim for weekly benefits compensation in the period from
22 January 2021 pursuant to s 38 of the 1987 Act at the PIAWE rate of $694.
Under s 38(2) of the 1987 Act a worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation. Under s 38(6) payments of compensation are at the rate of 80% of the applicant’s PIAWE.
The meaning of ‘no current work capacity’ is found in cl 9 of Schedule 3 of the 1987 Act. An injured worker has no current work capacity if there is a present inability arising from the injury such that they are not able to return to work either in the pre-injury employment or in suitable employment.
It is uncontroversial that the applicant is unable to return to work in the pre-injury employment.
Section 32A of the 1987 Act sets out the matters which should be taken into consideration in assessing the applicant’s capacity for suitable employment. Suitable employment means employment in work for which the worker is currently suited having regard to;
“(i)     the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)     the worker’s age, education, skills and work experience, and
(iii)    any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)    any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)     such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i)      whether the work or the employment is available, and
(ii)     whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)    the nature of the worker’s pre-injury employment, and
(iv)    the worker’s place of residence.”
The applicant’s submission is that the role of a bookkeeper nominated by the respondent as suitable employment is not employment for work in which the applicant is currently suited.
I accept that submission on the basis of the evidence.
The respondent’s submission is that the applicant has work capacity. The evidence in my view establishes that the applicant does not have current work capacity. She has an inability to return to work in suitable employment as a bookkeeper having regard to the medical information, her age, education, skills and work experience, and the return to work planning and occupational rehabilitation services provided to her.
The applicant is certified by her general practitioner as having had capacity to work 40 hours a week in the period between 22 January 2021 and 18 April 2021.
The nature of her incapacity in the certificates is with respect to her right shoulder injury and bilateral carpal tunnel syndrome. The certificates include lifting/carrying and pushing/pulling restrictions, to avoid lifting the right arm above shoulder height and repetitive right shoulder actions, and to take breaks for 10 minutes every two hours.
The doctor also comments “OK to do community transport admin, OK to do Bookkeeper, as per RTW Plan 10/20.”[27]
[27] ARD pages 307, 313, 319.
Ms McShane noted in September 2020 that training was required in Xero/MYOB to upskill the applicant and make her competitive within the job market. A work trial was to be sourced as a bookkeeper to provide relevant skills and work history, and to demonstrate the applicant’s competence in that role.
Mr Girdler in 2023 notes the short training course to address the applicant’s lack of bookkeeping skills was delivered on-line without subtitles and she could not understand the content. Other work trial placements were attempted, however the applicant had insufficient skills to complete bookkeeping tasks and prolonged keyboard use and cash reconciliation tasks began to aggravate her wrist symptoms.[28]
[28] ARD page 77.

Mr Girdler comments that the applicant’s ability to type is a skill that survives the changes in the nature of clerical work since 2000. This is no longer applicable however due to her compensable injuries.
Dr Millons says the applicant “should avoid work that entails a lot of bending, lifting more than 5kg, using her arms above shoulder height or indulging in any repetitive work with her hands.”[29]
[29] Reply page 85.
Dr Bodel says if work as a bookkeeper requires any repetitive use of the arms then it would be unwise as that will aggravate her symptoms.
The duties of a bookkeeper including those outlined by Ms McShane as involving mostly computer operation including data entry,[30] clearly involve repetitive work with the hands and arms.
[30] Reply pp 65-66.
I agree with the respondent’s submission that the records of Mr Mandi and Mr Pateman until March 2020 and the certificates of capacity until April 2021 show a progression of improvement in respect of the right shoulder and bilateral carpal tunnel syndrome.
The evidence shows however that although the applicant is certified as having capacity to work 40 hours a week in suitable employment, employment as a bookkeeper is not suitable employment.
It is unclear when symptoms of the left shoulder and cervical spine injuries commenced, although in Dr Bodel’s opinion the left shoulder pain came on after the right shoulder injury. It is possible this occurred after the applicant stopped consulting Mr Pateman in March 2020. These injuries are also not considered by Dr McCarthy.
The applicant is certified as having no work capacity from 19 April 2021 to 26 July 2021.
The certificates of capacity after 19 April 2021 continue to be with respect to her right shoulder injury and bilateral carpal tunnel syndrome with similar restrictions as those described above.
In recording the estimated time to return to any type of employment, the certificates of
19 April 2021 and 13 May 2021 also say the applicant cannot work in a warehouse or in administration due to her pre-existing hearing impairment.
The respondent’s submission is that the applicant’s incapacity is then due to her hearing loss, incapacity that does not result from a compensable condition.

The applicant has severe sensorineural hearing loss in both ears with good speech perception in the right ear at amplified levels and fair speech perception in the left ear at amplified levels as described in the clinical audiology report of Mr Rogan Clancy of
[31] ARD page 92.
30 November 2021.[31]
The evidence is that the applicant was diagnosed with hearing impairment when she was about 36 years of age resulting in her ceasing work as a legal secretary.
I agree generally with the applicant’s submission that the respondent must take the applicant as it finds her.
Dr Millons says the applicant is unable to use headsets in a noisy environment and her hearing issues might make working in a busy office difficult.
Dr Bodel says her hearing impairment is the main reason why the applicant has not tried work as a bookkeeper or clerical assistant. As the respondent submits, this history is inaccurate and she has unsuccessfully trialled that type of work.
The respondent refers to Mr Pateman’s records in 2019 that the applicant had work placements in June and in August 2019 for six weeks answering telephone booking appointments but she did not perform well due to hearing impairment.
Mr Girdler notes a trial as a receptionist was unsuccessful as the environment was too noisy for her to hear effectively and he says there is a need for special arrangements to accommodate her pre-existing hearing loss.
Ms McShane does not include hearing impairment as a barrier to return to work and the employer feedback obtained includes that hearing impairment may be accommodated.[32]
[32] Reply pp 64-65.
There is evidence that the applicant’s hearing impairment may be a barrier to finding suitable employment and that it may be able to be accommodated as the respondent submits.
It is her compensable injuries on the evidence as a whole, and particularly the expert medical evidence, that result in the applicant having no current work capacity.
In the respondent’s submission the applicant’s level of activity in her personal life in relation to bodyboarding, swimming and walking contradicts Dr Bodel’s opinion as to aggravation of her symptoms.
I do not accept the submission that remaining physically active in the way described contradicts the expert medical evidence with regard to the applicant’s injuries, symptoms and capacity to work in the absence of evidence in that respect. These activities would not for example usually require repetitive use of the hands.
Dr Bodel’s opinion on 28 June 2023 is that the applicant’s current capacity for work is essentially nil.
Dr Bodel says the applicant for all intents and purposes is totally and permanently incapacitated for work for which she has the appropriate levels of education, physical fitness, training and experience. In Dr Millons’ opinion that “seems a reasonable take on the matter.”[33] I accept these expert opinions.
[33] Reply page 86.
Mr Girdler says that assuming the successful completion of necessary re-training the applicant will need intensive and extensive professional assistance to secure employment. Aside from the need for special arrangements to accommodate her pre-existing hearing loss a potential employer would also need to be willing to agree to potentially expensive workstation modifications and changes to work practices to avoid excessive keyboard use.
He notes that as she is now over 60 years of age and has a condition vulnerable to re-injury it is unrealistic to suggest she could succeed. The chances of her securing employment he describes as negligible.
I have come to the conclusion on the evidence that the vocational options of bookkeeper and administrative assistant are not real jobs[34] in the applicant’s circumstances with regard to the injuries to her wrists, shoulders and neck.
[34] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
I accept the applicant’s submission that the certificates, the reports of Dr Bodel and
Dr Millons with Mr Girdler’s report establish that the applicant has no current work capacity from 22 January 2021 and this is likely to continue indefinitely.

SUMMARY

The applicant has sustained injuries to her cervical spine and left shoulder in the course of employment with deemed date of injury 12 June 2018 pursuant to s 4(b)(ii) of the 1987 Act.
The claim for lump sum compensation is to be remitted to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment.
The totality of the evidence supports the conclusion that the applicant is unable to return to work in suitable employment as a result of the compensable injuries.
The applicant has no current work capacity from 22 January 2021 which is likely to continue indefinitely in accordance with s 38(2) of the 1987 Act.
The respondent is to pay the applicant weekly benefits compensation pursuant to s 37 of the 1987 Act for the period 22 January 2021 to 20 July 2023 at the rate of 80% of $694 subject to indexation as follows;
(a)   $555.20 from 22 January 2021 to 31 March 2021;
(b)   $560.00 from 1 April 2021 to 30 September 2021,
(c)   $566.40 from 1 October 2021 to 31 March 2022;
(d)   $576.80 from 1 April 2022 to 30 September 2022;
(e)   $596.00 from 1 October 2022 to 31 March 2023, and
(f)    $620.80 from 1 April 2023 to 20 July 2023.

The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amounts referred to above.
The respondent will pay the applicant the sum of $47,710 pursuant to s 66 in respect of 19% whole person impairment caused by injuries to the right upper extremity (shoulder, wrist): left upper extremity (shoulder, wrist); and cervical spine on 12 June 2018.

[2024] NSWPIC 479

28 August 2024