Carrier v GIO General Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carrier v GIO General Ltd & Ors [2024] NSWPIC 275
APPLICANT:	Philippe Carrier
FIRST RESPONDENT: SECOND RESPONDENT:	Keci Pty Ltd Allied Overnight Express Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	24 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment; whether applicant suffered second injury to same body system, and if so, whether matter should be referred for assessment where all IMEs agree on whole person impairment; the applicant suffered an accepted injury to his cervical spine with the first respondent; he allegedly suffered a second injury by way of exacerbation of that injury owing to the nature and conditions of his employment with the second respondent; Held – on balance, the evidence discloses the applicant suffered the second injury; although the underlying pathology in the applicant’s neck remains the same, his symptoms have worsened; it is the cause of the exacerbation one must examine, not the underlying pathology caused by the earlier accepted injury; the three IMEs being in agreement as to the overall percentage impairment means there is no need for referral to a Medical Assessor, as the role of determining apportionment falls to the Commission constituted by a Member; having regard to the totality of the lay and medical evidence, the first respondent is 65% responsible for the applicant’s impairment, and the second respondent 35%; orders made accordingly.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to his cervical spine in the course of his employment with the first respondent on 16 April 2019. 2. The applicant suffered an injury by way of exacerbation to his cervical spine in the course of his employment with the second respondent, with a deemed date of injury of 24 April 2021. 3. As a result of the above injuries, the applicant has suffered a 15% whole person impairment. 4. The first and second respondents are to pay the applicant the sum of $37,420 in respect of a 15% whole person impairment in relation to the above injuries, with the first respondent to pay 65% of that sum and the second respondent to pay 35%.

STATEMENT OF REASONS

BACKGROUND

The applicant (Philippe Carrier) was injured in the course of his employment with the first respondent, Keci Pty Ltd on 16 April 2019. On that occasion, the applicant was engaged in repetitive lifting and carrying of heavy commercial beer kegs and suffered injury to his cervical spine and left upper extremity (shoulder). That injury is not in dispute.
The applicant ceased working for the first respondent and commenced employment with Allied Overnight Express Pty Ltd (the second respondent) as a factory worker and package handler. He alleges that as a result of his duties with the second respondent, he suffered an exacerbation of his injury. The second respondent disputes this injury.
The applicant has been assessed by three independent medical examiners (IME) retained by him and each of the respondents. They have all assessed the applicant as suffering a 15% whole person impairment to his cervical spine. That impairment arises from the applicant undergoing a C5/6 micro foraminotomy at the hands of Dr Parkinson on 22 August 2022.
The applicant seeks payment of permanent impairment compensation in relation to his cervical spine injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury in the course of his employment with the second respondent, and
(b) if the answer to (a) is in the affirmative, what is the appropriate apportionment between the respondents and whether the matter be referred for medical assessment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 22 May 2024. At the hearing, Mr McManamey appeared for the applicant, instructed by Mr Nemme. Mr Jones appeared for the first respondent, instructed by Mr van den Hout, and Mr McEnaney appeared for the second respondent, instructed by Mr Israil.
At the commencement of the hearing, the second respondent sought leave to raise a dispute pursuant to s 289 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by disputing injury. Neither the first respondent nor the applicant consented to that amendment, however, both parties accepted they would suffer no prejudice were that dispute allowed to be ventilated. After hearing from all counsel in the conciliation phase, I granted leave for the dispute to be raised.

EVIDENCE

Documentary evidence

The following documents were in evidence and taken into consideration.:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply of the first respondent and attached documents;
(c)    Reply of the second respondent served under Application to Admit Late Documents (AALD) and attached documents dated 9 February 2024;
(d)    AALD and attached documents of the second respondent dated 13 March 2024, and
(e)    AALD and attached documents of the applicant dated 15 March 2024.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury in the course of his employment with the second respondent

As noted, there is no question the applicant suffered an injury in the course of his employment with the first respondent on 16 April 2019. Following his injury, on 3 May 2019, the applicant had a cortisone injection to his neck and was certified fit to return to work on 17 June 2019. In November 2020, the applicant ceased working for the first respondent and commenced employment with the second respondent as a factory worker/package handler. According to the applicant:
“5.     My work consisted of repetitive lifting, bending, twisting my neck and back using my shoulders. I was lifting small to heavy items. One of the heaviest items I would be lifting would be the toe bar, which weighs 30 kgs.
6.      My pain came back in my neck, shoulder and spine and around 21 April 2021. I saw my GP and also lodged a recurrence of injury form to [the first respondent’s insurer] to reopen my case.
7.      I had another injection into my neck in June 2021, but this injection did not work, I was still feeling pain.”
In a further statement dated 16 January 2024, the applicant relevantly provided the following details in relation to his employment:
“9.     Elaborating on the nature of my employment with [the first respondent], the kegs that I was required to lift and move were commercial 50 litre kegs. They were full, and when combined with the weight of the keg, I estimate that they would have weighed approximately 60 kgs.
10.    After the onset of pain and symptoms, I did not perform any further heavy manual lifting work, particularly the keg work.
11.    Whilst my symptoms did abate after the corticosteroid injection on 3 May 2019, I did not engage in any other heavy or laborious lifting, and I confined myself to performing managerial duties, directing the younger staff members to perform the heavy lifting work.
12.    After I ceased working with [the first respondent], and started with open [the second respondent] in November 2020, I returned to light lifting. I worked in the auto parts division and the lifting and carrying was generally pretty light. Some of the boxes like the bumpers were a little unconventional as they were long and were awkward to lift, but they were not heavy.
13.    The heavier items were the tow bars, which I previously stated weighed about 30 kgs. After trying to lift them on several occasions, I realised that it was not compatible with my injury and lifting restriction and informed my employer. I was told to leave the tow bars as that lifting would be undertaken by my co-worker, Ray, whose surname I cannot recall.”
The event which led the applicant to allegedly suffering injury on 17 April 2021 was the simple act of lifting a glass of soda water, whereupon he became aware of weakness in his arm, similar to that which he had suffered when he had been injured in the course of his employment with the first respondent.
The parties are in agreement that the prosaic act of lifting a glass of soda water is not sufficient to have caused the applicant’s further injury. However, the applicant’s case is the nature and conditions of his employment caused an exacerbation - that is, a worsening of symptoms to underlying pathology which remained the same - which had originally been suffered in the course of his employment with the first respondent.
For the first respondent, Mr Jones submitted the evidence clearly established an injury by way of aggravation or exacerbation while the applicant was working for the second respondent. He noted, plainly correctly, that an exacerbation or aggravation may occur without any change to underlying pathology, as it is the cause of the worsening experience of the symptoms of injury which must be considered under s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), rather than the cause of the underlying pathology in the affected body system.
For the second respondent, Mr McEnaney submitted the evidence did not sufficiently disclose that the nature and conditions of employment were such as to aggravate or exacerbate the applicant’s injury with the first respondent.
With respect, I disagree with that submission. The applicant gives evidence of repeatedly lifting and carrying objects of varying weight, mostly not heavy but occasionally of awkward dimensions and heavier weights, up to 30kg.
In my view, that evidence is sufficient, uncontested as it is, to satisfy a finding that the nature and conditions of the applicant’s employment were sufficiently heavy as to cause him an aggravation of his underlying condition.
The applicant’s IME Dr Moloney provided several reports. He initially indicated that both employers were liable in part for the applicant’s condition, however, in his most recent report indicated that the second respondent was not so liable. However, as Mr McManamey noted, that comment by Dr Moloney was plainly in relation to the incident where the applicant lifted a glass of soda water and felt the onset of worsening symptoms. To the extent Dr Moloney dealt with the nature and conditions of the applicant’s employment with the second respondent, his views are, I find, broadly consistent with those of Dr Bentivoglio, IME for the first respondent. Dr Bentivoglio was of the view that the applicant’s employment with the second respondent was of a nature which contributed to his injury.
For the second respondent, IME Dr Haig was of the view there was no contribution by the second respondent to the applicant’s condition. However, in providing that opinion Dr Haig did not have the benefit of a detailed history of the nature and extent of the applicant’s duties with the second respondent. He described the applicant’s employment with the second respondent as work which “involved forklift operating and the handling of packages”. When relating the onset of symptoms by the applicant whilst working with the second respondent, Dr Haig said:
“I have described above his clinical course since then. He responded well to a presumed nerve root injection and all was well for about two years when, without any particular incident, and I would not regard lifting a glass of water as an incident, he again developed left upper extremity weakness dropping the glass. He developed further increasing numbness and weakness of the left upper extremity and was aware of reduced range of motion in the neck.”
There is little doubt the applicant suffered significant pathological changes as a result of the initial injury with the first respondent. As Dr Bentivoglio noted in his report dated
15 June 2021, the foraminal stenosis at C6/7 after the first injury was still present after the onset of symptoms whilst working with the second respondent. Dr Haig indicated there was no reason to believe the applicant’s work with the second respondent was likely to cause any aggravation or exacerbation of his symptoms, but rather the worsening symptoms represented nothing more than the natural history of a calcified disc.
However, there is no question the applicant had reduced symptoms following the course of treatment after the initial injury until April 2021. There is also no suggestion there was a gradual progression of symptoms between the first injury and the alleged second injury. Rather, it was after the applicant carried out the repetitive lifting and carrying work with the second respondent that his symptoms worsened, albeit the worsening symptoms first manifested themselves while the applicant carried out the prosaic act of lifting a glass of soda water.
On balance, I do not accept Dr Haig’s view, and prefer those of Dr Moloney and Dr Bentivoglio, namely that there was an injury by way of exacerbation caused to the applicant’s cervical spine as a result of his employment with the second respondent. Such finding is consistent not only with the preponderance of the IME evidence but also the treating material and the applicant’s own uncontested statement evidence.

Further conduct of the matter

For the first respondent, Mr Jones submitted the Commission would remit the matter to the President for referral to a Medical Assessor to provide a global assessment of whole person impairment, before relisting the matter to determine the question of apportionment between the two injuries.
Mr McManamey for the applicant, submitted there was no need to refer the matter for assessment, as all three IMEs have ascribed a 15% whole person impairment to the applicant as a result of the injury to his cervical spine. That impairment, as noted by the IMEs and by the parties in their submissions, is a mandated one pursuant to the relevant guidelines, owing to the nature of the surgery carried out to the applicant’s cervical spine, which in accordance with those guidelines unambiguously gives rise to a 15% whole person impairment. In other words, from a quantum point of view, there is no medical dispute.
Mr McManamey submitted the appropriate course would simply be for the Commission to provide an apportionment between the respondents.
For the second respondent, Mr McEnaney’s primary submission was his client was not liable for any injury, however, in terms of the procedure to be adopted in the event such a finding was made against his client, accepted the proposition as put forward by Mr McManamey.
In my view, it is unnecessary to refer this matter to a Medical Assessor. There is not only an equivalent impairment rating from all three IMEs, but the basis for that impairment rating is also set out in the guidelines and is not something which the IMEs have arrived at by subjective assessment. Accordingly, it falls to the Commission to apportion liability for the applicant’s permanent impairment compensation as between the respondents.
Mr McManamey submitted, and I accept, that having found two injuries leading to the one impairment, the applicant is entitled to a monetary sum reflecting the amount payable for 15% whole person impairment for injuries suffered in April 2021. That submission was not opposed by either respondent.
Mr Jones submitted that given Dr Haig’s opinion was not preferred, the only medical evidence in relation to apportionment was that of Dr Bentivoglio, who attributed a 50% responsibility for the overall impairment to each injury. Whilst that submission is somewhat persuasive at first blush, it must be remembered that questions of apportionment are matters for the Commission and are not to be delegated to medical opinion.
As an aside, I also note there were previous proceedings in relation to the cervical spine surgery undertaken by Dr Parkinson, and a resolution was reached involving a consent notation apportioning payment between the first and second respondents. That agreement carries no weight in these proceedings, noting the agreement was expressed as a consent notation rather than an order of the Commission. No party to these proceedings submitted the prior agreement carried any weight in this matter.
There is no doubt the change in pathology to the applicant’s neck is attributable to the first injury. Radiological investigations undertaken both before and after the second injury confirm this to be the case. Nevertheless, the applicant had been able to return to the workforce after the first injury, until such time as he had the second injury owing to the nature and conditions of his employment with the second respondent.
Having found there was a second injury which contributes to the applicant’s condition, it is appropriate to take into account the applicant’s lay evidence as to the effects of that injury upon him together with the medical material in the case. In so doing, I have had regard to all three IME opinions, together with the reports of Dr Parkinson, treating surgeon, who offered no opinion as to causation, which is understandable given his role as treating doctor rather than providing a medicolegal opinion.
Having regard to the significant pathological changes caused by the first injury, I am of the view the first respondent should carry the greater share of responsibility for the applicant’s injury. In so finding, however, I am of the view that the increase in symptoms suffered by the applicant as a result of the second injury render the contribution of the second respondent to his condition as much larger than de minimis.
Doing the best I can, and having regard to the totality of the evidence in this matter, I am of the view that the first respondent is 65% responsible for the applicant’s condition and the second respondent 35%. Accordingly, the Commission will make orders for the payment by the respondents to the applicant for a sum representing the amount payable for a 15% whole person impairment as at April 2021, apportioned 65% to the first respondent and 35% to the second respondent.

SUMMARY

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

[2024] NSWPIC 275

24 May 2024