Burton v Leeton Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Burton v Leeton Shire Council [2023] NSWPIC 424
APPLICANT:	Michael Burton
RESPONDENT:	Leeton Shire Council
Member:	Brett Batchelor
DATE OF DECISION:	21 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66 as a result of injury to the left knee on three separate dates resulting in the same pathology in the knee; the respondent claimed that the quantum of the compensation should be determined having regard to the first date of injury; the applicant claimed it should be determined having regard to the last date of injury; consideration of Presidential decisions in Department of Juvenile Justice v Edmed, Trustees of The Roman Catholic Church for the Diocese of Parramatta v Barnes, the Court of Appeal decision in Ozcan v MacArthur Disability Services Ltd, and other decisions of members of the Commission; the applicant presented his case on the basis of the one injury occurring on three separate dates causing the one level of whole person impairment assessed by the Medical Assessor; Held – finding that the applicant was entitled to section 66 compensation calculated with reference to the last date of injury pleaded.
determinations made:	The Commission determines: 1. The applicant sustained injury to his left lower extremity (knee) on 28 January 2014, 19 November 2015, and 18 January 2016. 2. The respondent is to pay the applicant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in the sum of $69,520 for 27% whole person impairment as a result of such injury.

STATEMENT OF REASONS

BACKGROUND

Michael Burton (the applicant/Mr Burton) claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury to his left knee on
28 January 2014, 19 November 2015 and 18 January 2016 arising out of or in the course of his employment with Leeton Shire Council (the respondent).
The applicant was employed by the respondent as a labourer/driver. On 28 January 2014 he stepped into a depression concealed by grass as he was walking and twisted his left knee. There was a further twisting event on or about 19 November 2015 when Mr Burton was climbing in or out of a tractor in wet conditions. A third event occurred on 18 January 2016 when he again twisted his left knee.
The applicant was referred to Dr Mamo, orthopaedic surgeon, and underwent conservative treatment which did not assist his condition. On 20 June 2017 Dr Mamo carried out an arthroscopy on the left knee, which was similarly unhelpful in improving the condition in the knee, with Mr Burton experiencing ongoing swelling, pain and restriction of movement.
Dr Mamo recommended that the applicant have a full left knee replacement, which he carried out on 9 June 2021. On 28 July 2021 the doctor performed a manipulation under anaesthetic, which was repeated in about early September 2021.
Mr Burton remained off work following the knee replacement, returning to part-time alternative duties with the respondent in January 2022.
On 1 April 2022 the applicant was independently medically examined by Dr Christopher Oates, consultant occupational physician, at the request of his solicitor. Dr Oates reported to the solicitor on 6 April 2022.[1] His diagnosis was that the applicant had sustained a torn medial meniscus of the left knee with aggravation of pre-existing and previously asymptomatic degenerative changes in the medial and patellofemoral compartments of mild degree. He assessed the applicant as suffering from 27% whole person impairment (WPI) as a result of a specific incident of injury consistent with having caused a meniscal tear, and also causing aggravation of any degenerative changes which may have been present. The doctor considered that the main pathological lesion in the left knee was post-traumatic lesion rather than a gradually progressive degenerative disease. This figure was arrived at after the assessment of 30% WPI less one-tenth thereof pursuant to s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[1] Application to Resolve a Dispute (ARD) p 13, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
Dr Oates said that as the left knee had been symptomatic since the injury of
28 January 2014, he considered that the injury of that date was a substantial contributing factor to the knee condition, which resulted in the eventual need for knee replacement.
Dr Oates said that the applicant’s left knee was asymptomatic prior to the injury of
28 January 2014, despite the nature and conditions of employment in which the applicant was engaged as a road gang labourer.
The applicant was independently medically examined by Dr Stephen Rimmer on 23 August 2022 who produced a report dated 23 August 2022.[2] Dr Rimmer diagnosed that the applicant had sustained aggravation of pre-existing degenerative osteoarthritis in the left knee. When asked if the pathology to the left knee after the 28 January 2014 injury was the same as the pathology to the left knee following 19 November 2015 and 20 April 2021 injuries, Dr Rimmer said:
“This is impossible to state with any accuracy, i.e., it would require myself to assess
[2] Reply p 3.
Mr Burton on each occasion to determine that.”
Dr Rimmer assessed the applicant as having sustained 15% WPI of the left knee, reduced by one-tenth pursuant to s 323(2) of the 1998 Act to 13.5% WPI and rounded up to 14% WPI.
Dr Oates was asked to comment on the report of Dr Rimmer. In a supplementary report dated 20 October 2022.[3] Dr Oates noted the reference by Dr Rimmer to the incidents to the left knee apparently reported to the employer on 19 November 2015 and 18 January 2016, and reviewed the multiple reports from the treating orthopaedic surgeon, Dr Mamo. He said that, interestingly, when Dr Mamo saw Mr Burton for the first time on 4 February 2016, there was no reference made to the alleged re-injury to the left knee which occurred just a few weeks before on 18 January 2016. Dr Oates then discussed the mechanism of that injury, the nature and conditions of the applicant’s employment, and the mechanism of the injury on 28 January 2014 when he said that Mr Burton was carrying a heavy weight of over 30 kg over one shoulder when his foot went into a hole about 50 cm deep.
[3] ARD p 20.
Dr Oates said:
“The further frank incidents of 19 November 2015 and 18 January 2016 do not seem to be substantial contributing factors to his knee condition, because they were quickly forgotten after apparently an injury note was made at work.
After considering the evidence, my opinion remains that the initial injury of 28 January 2014 was a substantial contributing factor to the left knee condition, after which the nature and conditions of his employment as a labourer, truck driver and concreter with the road gang was responsible for aggravation, exacerbation and acceleration of a post-traumatic degenerative disease process which was set in train by the original meniscal tear. After a meniscus is torn, the shock absorber function of this cartilage is interfered with, and the result is an accelerated rate of development of degenerative changes in the applicable joint compartment of the knee.
Therefore, along with the initial injury, the nature and conditions of employment thereafter do represent a main contributing factor to aggravation, exacerbation and acceleration of post-traumatic degenerative disease occurring in the medial compartment of the left knee, which was the compartment affected by the original medial meniscal tear.”
Dr Rimmer supplied a supplementary report dated 14 December 2022 in which he stated:
“The mechanism of injuries is consistent with an aggravation or pre-existing degenerative osteoarthritis resulting in a symptomatic left knee.
…
Having assessed Mr Burton in line with the extensive clinical file, I believe Mr Burton suffered multiple frank injuries to the left knee and is definitely not symptomatic in the left knee due to the nature and conditions of employment.
…
The fundamental difference between my opinion and that of Dr Oates is that I do not
believe the nature and conditions of his work have caused his knee to be symptomatic. It is a result of multiple frank injuries.”[4]
[4] Application to Admit Late Documents (AALD) dated 16 February 2023 p 2.
The matter was the subject of a preliminary conference before me on 21 February 2023 following which the following Certificate of Consent – Consent Orders was issued (COD-COs 21 February 2023):
“By and with the consent of the parties, the Commission determines:
1. The matter is remitted to the President for referral to Dr Tim Anderson, Wagga Wagga, on 21 March 2023 for assessment of permanent impairment as a result of injury to the left lower extremity (knee) on 28 January 2014, 19 November 2015 and 18 January 2016.
2. The documents to be referred to the Medical Assessor are:
(a)Application to Resolve a Dispute and attachments;
(b)Reply and attachments, and
(c)Application to Admit Late Documents dated 16 February 2023 lodged by the respondent with report of Dr Stephen Rimmer dated 14 December 2022 attached.”
Medical Assessor Anderson examined the applicant on 21 March 2023 and produced the Medical Assessment Certificate dated 19 April 2023 (MAC). He said at [10(c)] when asked for brief comments regarding other medical opinions and findings submitted by the parties and, where applicable, the reasons why his opinion differs, was:
“My assessment of impairment is the same as that of Occupational Physician, Dr Chris Oates in his reports of 06/04/22 and 20/10/22. Specialist Orthopaedic Surgeon,
Dr Stephen Rimmer in his reports of 23/08/22 and 14/12/22 assesses a ‘good’ result with 15% whole person impairment. My assessment gave a ‘poor’ result with 30% WPI. Dr Rimmer deducts one-tenth for pre-existing features, with which I would agree.”
Table 2 to the MAC is as follows:
Matter No:            W7483/23 [sic, 22]
Applicant:            Michael BURTON
Date of Assessment:      21/03/23
This Certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998.
This Certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998.

Body Part or system	Date of Injury	Chapter, page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)		Sub-total/s % WPI (after any deductions in column 6)
Left lower extremity (knee)	28/01/14	Chap 3 P 13 P 21 T 17-35 (modified)	P 547 T 17-33	30	1/10^th		27
	19/11/15
	18/01/16
Total % WPI (the Combined Table values of all sub-totals)						27

The matter was listed for a further preliminary conference on 21 June 2023 after which the following directions were issued:
“The Commission directs:
1. The applicant is to lodge and serve by 5 July 2023 written submissions on the date of injury which should be accepted for the purpose of determination of the quantum of lump sum compensation to which the applicant is entitled pursuant to s 66 of the Workers Compensation Act 1987.
2.     The respondent is to lodge and serve by 19 July 2023 written submissions in reply.
3.     The applicant is to lodge and serve by 26 July 2023 any further submissions in reply to the respondent’s submissions on which he wishes to rely.
4.     At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.”

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is which of the dates of injury,
28 January 2014, 19 November 2015, or 18 January 2016, should be accepted for the purpose of determination of the quantum of lump sum compensation to which the applicant is entitled pursuant to s 66 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties have agreed to the determination of the matter without a conference or formal hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attachments;
(b)    Reply and attachments;
(c)    AALD dated 16 February 2023 lodged by the respondent with supplementary report of Dr Rimmer dated 14 December 2022 attached;
(d)    applicant’s written submissions dated 26 June 2023;
(e)    respondent’s written submissions dated 18 July 2023, and
(f)    applicant’s reply submissions dated 25 July 2023.

SUBMISSIONS

In summary, the parties’ submissions are as follows.

Applicant’s submissions dated 26 June 2023

The applicant refers to the COD-COs 21 February 2023 set out above at [14] (referred to in the submissions as “Direction”), and the MAC.
The applicant submits that the Medical Assessor’s assessment reveals that he has sustained the same pathology in his left knee. Therefore, he has sustained one injury for the purposes of s 322(2) of the 1998 Act, and the resultant impairment from the three incidents is to be aggregated (Department of Juvenile Justice v Edmed).[5] There is no dispute pertaining to this. The only remaining dispute is that set out at [18] above.
[5] [2008] NSWWCCPD 6 (Edmed).
The applicant submits that the lump sum compensation is payable pursuant to the last incident, 18 January 2016 because he has sustained one injury, that is, one pathology resultant from the three incidents. The sum payable is $69,520.
The applicant submits that the compensation which is payable pursuant to s 66 of the 1987 Act ought to be considered on that basis. That is, that the injury resulted from three incidents and not one. Section 66 is predicated on an “injury” and not an incident.
The applicant submits that to construe s 66 on the basis that the term “injury” is a reference to “incident”, and, therefore, it is to be construed differently to how “injury” has been construed for the purpose of s 322 of the 1998 Act, is the only basis upon which the respondent can argue that the lump sum compensation which is payable to the applicant is calculated by reference to the first incident.
The applicant submits that such a submission ought to be rejected because such construction does not lead to a construction of s 66 that is consistent and harmonious with the other provisions of the workers compensation legislation, citing Cooper Brookes (Wollongong) v Federal Commissioner of Taxation.[6] The applicant also relies on what French CJ stated at [24] of Certain Lloyd’s Underwriters v Cross.[7]
[6] [1981] HCA 26.
[7] [2012] HCA 56.
The applicant submits that, until the incident of 18 January 2016 (and including the incident of 19 November 2015), his WPI as assessed by the Medical Assessor was not discoverable. The 27% WPI was only discoverable after all three incidents occurred, not simply following the first incident. Accordingly, the degree of impairment for which compensation is payable is the injury sustained as a result of all incidents and not simply the first incident. The correct date pursuant to which calculation of the amount of lump sum compensation is payable is
19 January 2016. Such an interpretation is consistent with s 66(2) of the 1987 Act as “the injury” (emphasis in submissions) was not received prior to the final incident.
The applicant submits that a similar issue was addressed by (then) Senior Arbitrator Bamber in Boga v Carpet Call (VIC) Pty Ltd t/as Carpet Call.[8]
[8] [2019] NSWWCC 127 (Boga).
In the alternative the applicant relies upon Trustees of The Roman Catholic Church for the Diocese of Parramatta v Barnes.[9]
[9] [2015] NSWWCCPD 35 (Barnes).
The applicant submits that as the 27% WPI was not discoverable until all three incidents had occurred, it would be illogical to treat the date of injury for the purposes of quantum as the first incident in the circumstances wherein the applicant underwent two further incidents that led to the assessed impairment. Further, it would also be a construction that is not consistent with s 66(3) of the 1987 Act.
The applicant addresses the position if the respondent suggests that his impairment falls to be calculated in the manner addressed in Ozcan v MacArthur Disability Services Limited.[10] (Comment: the applicant at this point in his submission refers to the decision of Deputy President Wood in the Commission. The appeal to the Court of Appeal from the Deputy President’s decision is referred to hereunder). The applicant submits that it is undoubtedly open for him to do this, referring also to State Government Insurance Commission v Oakley[11] and Faulkner v Keffalinos.[12] However, that is not how the applicant seeks to have his WPI calculated.
[10] [2020] NSWWCCPD 21 (Ozcan 1).
[11] (1990) MVR 570.
[12] (1971) 45 ALJR 80.
The applicant does not seek to claim lump sum compensation on the basis that it results from the one incident on 28 January 2014, and that subsequent incidents materially contributed to same. The applicant makes it clear that he is relying upon s 322(2) of the 1998 Act and on Edmed, and in the alternative, on Barnes.

Respondent’s submissions dated 18 July 2023

The respondent notes that the applicant accepts that the three incidents in which he was involved resulted in the same pathology. The respondent then refers to what apparently occurred at the initial teleconference, alleging that “…the Applicant accepted that the first incident was ‘in it for the majority’”. The respondent submits that “The medicine available as outlined below supports this conclusion”.[13]
[13] Respondent; s submissions 18 July 2023 at [1].
The respondent submits that in these circumstances the Commission is to deal with the matter either in accordance with Edmed “…and [sic, or?] Ozcan v MacArthur Disability Services Ltd[14] in respect of the determining of a date of injury referable to the payment of the lump sum compensation”.
[14] [2021] NSWCA 56 (Ozcan 2).
The respondent then refers to the facts in Ozcan 2 and the Court of Appeal judgement thereon, which it asserts is binding on the Commission. The respondent submits that the Commission must look at the facts in the current matter and if satisfied that the first incident materially contributed to the subsequent injuries, then it must adopt 28 January 2014 as the relevant date of injury.
The respondent submits that the Commission adopted the approach in Ozcan 2 in the recent decision of Zdanovits v Officemax Australia Limited,[15] and related the facts thereof.
[15] [2021] NSWPIC 129 (Zdanovits).
The respondent asserts that the applicant’s submissions that the earlier date of injury ought to be rejected because such a construction does not lead to a construction of s 66 that is “consistent and harmonious” with other provisions of the workers compensation legislation, should not be entertained. The respondent submits that Ozcan 2 is precedent that the earlier date of injury should be accepted, and its application in Zdanovits reinforces this assertion.
At [8] – [14] under “Background” in its submissions the respondent refers to what apparently occurred at “…the initial teleconference on 21 February 2021” (in fact now properly referred to as a “preliminary conference”, conducted via the Microsoft Teams platform). For reasons set out hereunder I will not refer to these submissions.

The respondent then summarises the factual and medical evidence, including the radiological investigations, the treatment rendered by Dr Mamo, and also by Dr Semananda, the nominated treating doctor.
The respondent also refers to the reports of Dr Oates, Dr Rimmer and the Medical Assessor.
The respondent submits that the facts and evidence in the current matter support the assertion that the injury on or about 28 January 2014 materially contributed to the applicant’s condition such that the Commission should adopt the approach in Ozcan 2 and Zdanovits in relation to determining the date of injury referable to payment of lump sum compensation.
The respondent refers to the facts in Ozcan 1 and Ozcan 2. The respondent notes that the Court of Appeal in Ozcan 2 distinguished the finding in that matter from the decision in Edmed on the basis that Edmed did not address any argument that an injury materially contributed to later injuries and that therefore the later injuries “arose out of” or “resulted from” the first.
The respondent then submits that in the current matter “…the medical evidence clearly establishes that the subsequent injuries were consequential injuries giving rise to the same pathology and ultimately requiring a knee replacement”.
The respondent submits that, noting the facts and evidence in the current matter and the decision in Ozcan 2, what occurred at the initial teleconference, and the views of Dr Oates, Dr Rimmer and the Medical Assessor, the Commission should make a determination that the 27% WPI assessed by the Medical Assessor is referable to the first incident on
28 January 2014.

Applicant’s reply submissions dated 25 July 2023

The applicant repeats his reliance on the decisions of Edmed and Barnes, and specifically disavows reliance on Ozcan 2. It on this “unambiguous basis” that the applicant makes the submissions pertaining to statutory construction referred to in his original submissions. The applicant submits that therefore the respondent’s submissions are irrelevant to the present issue.
The applicant submits that the fact that there was a significant (emphasis in submissions) event did not matter. There is no requirement for all of the relevant incidents to have had the same relevance to the impairment.
The applicant submits that there will effectively always be an initial incident causative of injury, and then subsequent incident/s also causative of injury when principles in Edmed or Barnes are sought to be applied. One of these events will be more significant than others. That is not what the focus was in Edmed and Barnes.
The applicant submits that in Edmed, the focus was upon there being the same pathology, which in the current matter the respondent has conceded there was. In Barnes, the focus was upon the impairment being caused by the three incidents, which in this matter, it has been so caused.
The applicant submits that the respondent’s reference to significance is a gloss that is not needed, and also not warranted in the context of the current matter.
The applicant submits that the respondent has made no attempt to grapple with the applicant’s submissions pertaining to Barnes, nor has it actually grappled with the submissions made pertaining to Edmed, “…aside from stating that Ozcan ought to be applied”.
The applicant submits that when one has regard to MacFarlan JA’ remarks, with whom McCallum JA and Simpson AJA agreed at [22] – [24] in Ozcan 2, it is clear that the applicant is not restricted from relying and prevented from relying upon Edmed and Barnes.
The applicant submits that the question being addressed by the Court of Appeal in Ozcan 2 was different to the present circumstance as it pertained to the involvement of a different (emphasis in submissions) body part to the spine injuries that the worker in that case had injured in multiple incidents. In that context, the Court of Appeal indicated that the principles of causation applied, and it distinguished Edmed in particular. The worker in the Ozcan cases did not pursue a claim on the basis of Edmed and Barnes, and the principles on which the applicant in this case have no bearing upon the decisions in Ozcan 1 (Deputy President Wood) and Ozcan 2 (the Court of Appeal).
The applicant takes issue with the description of the two injuries he suffered after the first injury on 28 January 2014 as “consequential injuries”. Such a description is inconsistent with the Consent Orders (referring the matter to a Medical Assessor), and the agreement between the parties that he suffered three injuries. The applicant submits that the respondent is estopped from now seeking to assert that the subsequent injuries were not injuries, but were consequential conditions.
The applicant notes the distinction between injury and consequential conditions that has been applied in the jurisdiction in cases such as Kumar v Royal Comfort Bedding Pty Ltd.[16]
[16] [2012] NSWWCCPD 8.
The applicant submits that the respondent’s submissions in this regard are internally inconsistent in that if it is relying on the principles of causation noted on Ozcan 1 or Ozcan 2, then the question is not one pertaining to consequential conditions because in the Ozcan matter, the facts were that the worker had been involved in three separate frank incidents and sustained three separate frank injuries.
The applicant finally submits that the respondent’s case is framed on the basis that the applicant is restricted to the principles referred to in Ozcan 2. However, it has not articulated any basis as to why this is so.

FINDINGS AND REASONS

Preliminary conference on 21 February 2023

The respondent in part relies on what occurred at the preliminary conference on 21 February 2023 in support of its submission the lump sum compensation be calculated by reference to the first date of injury pleaded by the applicant, 28 January 2014.
A Member of the Commission has an obligation under cl 6 of Part 5 of Schedule 3 to the Personal Injury Commission Act 2020 (the PIC Act) not to make an award or otherwise determine a dispute without first using his or her best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. This conciliation phase occurs both at the preliminary conference and prior to commencement of an arbitration hearing in the event of failure to reach a settlement. It allows a full and frank exploration of the issues in the case and a free exchange of views between the parties and the Member of the Commission. These events are not transcribed unless requested by the parties.[17]
[17] See Fairfield City Council v Comlekci [2023] NSWPICOD 45 at [8].
For this reason in my view it is not open to either party to rely on discussions which took place, or any concessions that may have been made during conciliation, in support of their respective cases. If agreement is reached to settle the proceedings, or to narrow the issues which go forward for determination, that agreement is recorded following the preliminary conference. In this case, it was recorded in the COD-COs 21 February 2023 remitting the matter to the President for referral to the Medical Assessor. In determining this case, I take cognisance only of that COD-COs and not what is said to have occurred at the preliminary conference.

Legislation

The following provisions of the 1987 Act are relevant:
“Division 4 Compensation for non-economic loss
65 Determination of degree of permanent impairment
(1)    For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2)    If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note—
The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3), (4) (Repealed)
…
66 Entitlement to compensation for permanent impairment
(1)    A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A)    Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
(2)    The amount of permanent impairment compensation is to be calculated as follows—
[the amounts of permanent impairment compensation are then specified by reference to different WPI percentages]
…
(3)    The amount of permanent impairment compensation is to be calculated under this   section as it was in force at the date the injury was received.”
Section 322 of the 1998 Act is as follows:
“322 Assessment of impairment
(1)    The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)    Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)    Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note—
Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)    An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”

Case law

In Edmed, Deputy President Roche said at [26] – [27] after referring to the definition of “injury” in s 4 of the 1987 Act:
“26. This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident...’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one “incident”. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
27. The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
The facts in Ozcan are summarised in the respondent’s submissions. They are as follows.
On 14 November 2011 the applicant worker was involved in a work accident in which she suffered injuries to her lumbar spine, thoracic spine and right shoulder. In later work accidents on 3 May and 26 September 2012 she suffered injuries to her lumbar spine and thoracic spine. The applicant claimed against her employer compensation for permanent impairment pursuant to s 66 of the 1987 Act.
The approved medical specialist (AMS) who assessed permanent impairment found 5% WPI as a result of injury to the thoracic spine, 7% WPI as a result of injury to the lumbar spine and 3% WPI as a result of injury to the shoulder. The AMS found that the spinal injuries suffered on the first date contributed to the spinal injuries suffered on the two subsequent dates, but that the shoulder injury did not contribute to the later injuries.
On appeal from a decision of an arbitrator, a Deputy President of the Workers Compensation Commission held that the spinal injuries could be assessed together, resulting in a WPI of 12%. The Deputy President however found that the WPI of 3% for the shoulder injury was unable to be aggregated with the 12% WPI for the spinal injuries, because the shoulder injury was obtained in a different injurious event, did not materially contribute to the subsequent spinal injuries and was “not the same injury (pathology)”. This meant that the applicant was not entitled to permanent impairment compensation in respect of her shoulder injury as it weas less than the 10% threshold specified in s 66(1) of the 1987 Act.
This decision was overturned in the Court of Appeal.
Macfarlan JA held, McCallum JA and Simpson AJA concurring, held at [22]:
“It is not however necessary, or indeed appropriate, to express any concluded view concerning the correctness of the decision in Edmed. Ms Ozcan did not assert that it was incorrect but, for good reason, submitted that it was not, even if correct, determinative of the presently proposed appeal. Edmed is distinguishable from the present case at least for the reason that Roche DP did not address any argument, presumably because none was put to him, that the first wrist injury with which that case was concerned materially contributed to the second. There thus did not arise in that case any suggestion that the second injury ‘arose out of’ or ‘resulted from’ the first. The decision did not therefore contradict what I consider to be the correct conclusion in the present case that, because the first spinal injuries contributed to the later ones, the impairments ‘resulting from’ the later injuries, as with those ‘resulting from’ the first, ‘arose out of’ the incident in which the first were suffered, thereby attracting s 65(2) of the 1987 Act and s 322(3) of the 1998 Act.”
The three impairments assessed by the AMS could therefore be aggregated, resulting in an assessment of 15% WPI.
The Court of Appeal in Ozcan 2 was dealing with three separate incidents of injury to three different body parts (the thoracic spine, lumbar spine and shoulder), and addressed the meaning of s 65(2) of the 1987 Act and s 323(3) of the 1998 Act. Those two subsections, although not directly relevant to the facts in the current proceedings, which are in respect of injury occurring on three separate occasions giving rise to permanent impairment as a result of the same pathology (emphasis added) in the left knee, the comments of his Honour on the meaning of the subsections are apposite. In [25] Macfarlan JA says:
“Section 65(2) of the 1987 Act is to the same effect as s 322(3) of the 1998 Act – under the former, injuries arising out of the same incident are to be treated as one injury and under the latter, impairments resulting from more than one injury arising out of the same incident are to be assessed together. The respondent submitted that s 65(2) was a deeming provision because it required multiple injuries arising out of the same incident to be “treated” as one injury. It referred in support to authorities such as Minister for Immigration and Border Protectionv Makasa [2021] HCA 1; (2021) 95 ALJR 117 at [51] indicating that a deeming provision should be treated with some caution to ensure that it is not ‘taken to have a legal operation beyond that required to achieve the object of its enactment’. Such caution is not however significant in the present case as the meaning and effect of s 65(2) are clear and wholly consistent with s 322(3) of the 1998 Act which is not, in form, a deeming provision. There is no basis in either enactment for giving s 65(2) anything other than its ordinary and natural meaning. On that basis it indicates the correctness of Ms Ozcan’s argument.”
The applicant in the case currently before the Commission makes submissions on the construction of the legislation with which the case is concerned. The comments of Macfarlan JA, in particular referring to the “ordinary and natural” meaning of the legislation, in my view could equally apply to the meaning of s 323(2) of the 1998 Act which addresses impairments that may result from the same injury, meaning “pathology”, arising out of different incidents. Deputy President Roche addressed this situation at [27] in Edmed, referred to at [64]:
“…impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
The “ordinary and natural meaning” of s 323(2) is quite clear.
The respondent relied on the recent decision of Member Burge in Zdanovits, the facts of which are referred to at [4] of its submissions. The Member in that case found that the pathology of psychological injury suffered by the worker in two separate incidents was the same. The assessment of impairment assessed by the AMS of 20% WPI was attributed 6% to one injury and 14% to a separate injury. The Member referred to Edmed, noting that impairments arising from the same pathology suffered in separate incidents may be assessed together, but also referred to Ozcan 2, which he said makes it clear that where one injury materially contributes to a subsequent one, the impairments can be aggregated. He found that such was the case in the matter before him.
The applicant on the other hand referred to the decision of Barnes, in which the WPI was predicated on the basis of three separate incidents as a result of which the worker was assessed as having suffered three separate levels of WPI and the same pathology in each incident. Deputy President Roche held that the three assessments could be aggregated, referring to Edmed and s 322(2) of the 1998 Act. In that case, as in the present case, only one claim for permanent impairment was made for the total, aggregated, level of WPI.
The applicant also referred to the more recent case decided by Senior Arbitrator Bamber (as she then was) of Boga. Following Barnes, and having regard to s 323(2), the Senior Member awarded lump sum compensation having regard to the second of two injuries involving injury to the lumbar spine causing the same pathology.

Injury

It is not in issue that, as a result of the three incidents of injury in which the applicant was involved, he suffered from the same pathology in his lumbar spine. For this reason it is not necessary to refer to the details of the medical evidence referred to by the respondent in its submissions.

Consideration

The applicant does not present his case on the basis that the first injury on 28 January 2014 materially contributed to the subsequent injuries. The applicant made his claim on the respondent’s insurer by way of a letter dated 25 May 2022 forwarding the “Permanent Impairment Claim” form (the claim form) and the report of Dr Oates dated 6 April 2022.[18] The claim form specified a date of injury of 28 January 2014. However, the parties agreed at the preliminary conference that the applicant’s claim was to be referred to the Medical Assessor for assessment of permanent impairment as a result of the three injuries of 28 January 2014, 19 November 2015, and 18 January 2016. That is the basis on which the Medical Assessor assessed the permanent impairment sustained by the applicant.
[18] ARD pp 5 and 11.
The respondent is not correct in its submission at [44] to assert that “…the medical evidence clearly establishes that the subsequent injuries were consequential injuries giving rise to the same pathology and ultimately requiring a knee replacement”.
In the ARD Form 2, the applicant in giving the “Injury Details” – 25/05/2022” referred to the unhelpful term, often used in workers compensation litigation, of “…the nature and conditions” of the applicant’s engagement in the duties of a driver/labourer. The use of this term has been often commented upon both in cases before the Compensation Court of New South Wales, the Workers Compensation Commission of New South Wales and the Commission. Neilson J said in Mirkovic v Davids Holdings Pty Ltd:[19]
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint.’ My colleague Burke J has repeatedly referred to it as a ‘meaningless concept’. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. The ‘microtraumata’ contention was that advanced by the worker on review.”
(See also Toplis Coles Group Ltd trading as Coles Logistics[20], and Raulston v Toll Pty Ltd).[21]
[19] [1995] NSWWCC19; 11 NSWCCR 656.
[20] [2009] NSWWCCPD 70 at [65].
[21] [2011] NSWWCCPD 25 at [60].
Dr Rimmer in his supplementary report dated 14 December 2023 when commenting on the supplementary report of Dr Oates dated 20 April 2022 said:
“The fundamental difference between my opinion and that of Dr Oates is that I do not believe the nature and conditions of his work have caused his knee to be symptomatic. It is as a result of multiple frank injuries.”
In his report dated 23 August 2022, Dr Rimmer recorded a history of the three injuries on the dates relied upon by the applicant, and the treatment of injury to the knee by Dr Mamo, including the left total knee replacement on 15 June 2021 [sic, 9 June 2021. Dr Mamo’s report on the surgery is dated 15 June 2021].[22]
[22] ARD p 33.
Notwithstanding the comment of Dr Rimmer recorded at [9] above, it is not in issue that the applicant sustained the same pathology in the left knee in the three incidents of injury.
The applicant made one claim for lump sum compensation based on the assessment of
Dr Oates of 27% WPI. It was agreed between the parties at the preliminary conference that the permanent impairment be assessed as a result of the three incidents referred to in the COD-COs 21 February 2023. Cases are determined on the evidence and arguments presented, not on the pleadings or particulars which are only a “means to an end” (see Barnes at [54]).
The respondent relies on what the Court of Appeal found in Ozcan 2, however the Court at [22] (see [70] above)] distinguished its finding on the case before it from what was decided by Roche DP in Edmed.
The applicant is entitled to have the permanent impairment from which he suffered as a result of the three frank incidents in which he was involved assessed by the Medical Assessor in the manner in which the parties agreed that it should be referred to him.
For the reasons outlined above, I find that the last date of injury relied upon by the applicant,18 January 2016, should be accepted for the purpose of determination of the quantum of lump sum compensation to which the applicant is entitled pursuant to s 66 of the 1987 Act.

SUMMARY

The applicant sustained injury to his left lower extremity (knee) on 28 January 2014,
19 November 2015, and 18 January 2016.
The respondent is to pay the applicant lump sum compensation pursuant to s 66 of the 1987 Act in the sum of $69,520 for 27% WPI as a result of such injury.

[2023] NSWPIC 424

21 August 2023