Davila v Queensland Properties Investments Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Davila v Queensland Properties Investments Pty Ltd [2022] NSWPIC 231
APPLICANT:	Joe Maria Davila
RESPONDENT:	Queensland Properties Investments Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	20 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation on the basis of multiple injuries; disputation as to whether worker incapacitated and whether injuries should be characterised as injuries simpliciter or as injuries caused by the “nature and conditions” of the workers employment; Mirkovic v David Holdings Pty Ltd and Perry v Tannine Pty Ltd discussed; significance of worker working 32 hours per week for respondent as a cleaner at time of termination of his employment; Held- award for worker pursuant to section 36 and 37 of the Workers Compensation Act 1987 on the basis of partial incapacity.
DETERMINATIONS MADE:	1. Discontinue the claim for permanent impairment compensation. 2. On or about 3 May 2018 the applicant suffered personal injury to his left knee. 3. On or about 22 May 2019, the applicant suffered personal injury to his right knee. 4. During the course of his employment the applicant suffered injury to his neck, shoulders, back, and elbows and the condition known as trigger finger. 5. These injuries are deemed to have occurred for the purposes of sections 15 and/or 16 on 29 April 2021, the first day of incapacity alleged in the Application to Resolve a Dispute. 6. As a result of a combination of these injuries the applicant has been partially incapacitated for work since 29 April 2021 and has been able to earn in suitable employment the sum of $600 per week. 7. Order that the respondent pay the applicant weekly compensation pursuant to ss 36 and 37 in accordance with these reasons. 8. Liberty to apply, if necessary, in respect of the calculation of the claim for weekly compensation. 9. Strike out the claim for future medical expenses. 10. Order that the respondent pay the applicant’s medical and hospital expenses in respect of the injuries referred to above in accordance with these reasons.

STATEMENT OF REASONS

BACKGROUND

Joe Davila (the applicant) commenced employment with Queensland Properties Investments Pty Ltd (the respondent), a subsidiary of Woolworths Ltd, as a picker packer in 2008. He continued to work for the respondent in various capacities until it terminated his employment on 29 April 2021.
During the course of his employment the applicant suffered injuries to his neck and back and upper and lower limbs. Liability to pay compensation for many of those injuries has been accepted by the respondent. But it denies that the applicant was incapacitated for work as a result of those injuries after 29 April 2021. The respondent also disputes the characterisation of the injuries.
The applicant contends that all of his injuries were caused by the “nature and conditions” of his employment with the respondent between 2008 and 2021. Thus, by operation of s 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) they can be assessed together for the purposes of determining the applicant’s entitlement to permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The respondent disputes that all of the injuries fall within the term “the nature and conditions” of the applicant’s employment. Several must be characterised as personal or frank injuries. Many of the injuries cannot be aggregated for the purposes of an assessment of permanent impairment.

PROCEEDINGS BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly payments of compensation from 29 April 2021 to date and continuing and an indemnity in respect of the cost of treatment of the pleaded injuries pursuant to s 60. He also claims permanent impairment compensation pursuant to s 66 of the 1987 Act.
The applicant particularised 19 injuries between 2011 and 2021. I summarise those injuries below:
(a)    Epicondylitis of the left elbow said to be a personal injury occurring on 21 January 2011.
(b)    An overuse strain of the neck and right trapezius said to be a personal injury occurring on 4 August 2014 but which first became symptomatic in 2013.
(c)    An overuse injury of the neck and right trapezius said to be a personal injury which occurred on 5 March 2015.
(d)    A repetitive strain injury of the right knee due to the nature and conditions of the applicant’s employment after 8 September 2009 but which became symptomatic when the applicant twisted his knee on 22 May 2019.
(e)    An overuse injury of the lower back and left hip also due to the nature of the applicant’s work from 8 September 2009 but which became symptomatic after February 2012.
(f)    An overuse injury of the left elbow caused by the nature of the applicant’s work from 8 September 2009 but in respect of which a claim was made on 24 January 2011.
(g)    An injury caused by overuse of the applicant’s neck and right trapezius which is also said to be a personal injury which occurred on 8 September 2009 to 29 April 2021.
(h)    An overuse injury to the applicant’s lower back and left hip caused by the nature of his work after February 2012.
(i)    An overuse injury to the applicant’s back and left hip caused by the nature and conditions of the applicant’s employment from 8 September 2009 to 29 April 2021.
(j)    An overuse injury to the neck and right trapezius first becoming symptomatic in 2013 caused by nature and conditions of employment from 8 September 2009 to 29 April 2021.
(k)    An overuse injury to the neck and right trapezius first becoming symptomatic in 2013 caused by nature and conditions of the applicant’s employment from 8 September 2009 to 29 April 2021.
(l)    An overuse injury to the applicant’s upper and lower limbs with a deemed date of injury of 30 November 2015.
(m)     An overuse injury to the right elbow caused by the nature and conditions of employment from 8 September 2009 to 21 December 2015 and continuing until termination of employment on 29 April 2021. The date of this injury is said to be 21 December 2015.
(n)    Overuse and repetitive strain injury to right middle finger necessitating surgery on 22 April 2018 which is given a date of injury of 26 July 2017.
(o)    Overuse and repetitive strain injury to right knee caused through the nature and conditions of the applicant’s employment from 8 September 2009 becoming symptomatic when the applicant twisted his knee whilst cleaning causing meniscal injury to right knee requiring surgery.
(p)    Overuse injury to the right knee and the aggravation of a disease between 8 September 2009 and 29 April 2021.
(q)    An overuse injury of the left knee causing meniscal tear on 3 May 2018 caused by the nature and conditions of the applicant’s employment from 8 September 2009 to 3 May 2018.
(r)    An overuse injury to the left knee causing meniscal tear on 3 May 2018 caused by nature and conditions of employment from 8 May 2009 to 3 May 2018.
(s)    An overuse injury to the left knee causing meniscal tear being an aggravation of a disease by reason of the applicant’s employment between 8 September 2009 and 3 May 2018.
Plainly, the particularisation of injuries is prolix, repetitious and possibly misleading. If I had paid sufficient attention to it at the telephone conference in the matter, I would have struck the matter out so that it could be repleaded in a manner that properly reflects the applicant’s claim.
When the matter came on for conciliation and arbitration hearing on 15 March 2022, Ms Goodman of counsel represented the applicant and Ms Compton of counsel represented the respondent. Although there was some attempt made to resolve the issues in dispute, I was ultimately informed by counsel that they were unable to reach any mutually satisfactory resolution of the dispute.
I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to consider settlement at the telephone conference and at the conciliation conference. Ms Compton stated that the issues were:
(a)    the relevant dates of injuries with respect to the frank injuries for which the respondent had accepted liability;
(b)    whether or not the applicant had “sustained a nature and conditions injury” of the low back;
(c)    whether or not the applicant had suffered a nature and conditions injury of the left and right knee;
(d)    the date of an accepted nature and conditions injury to the applicant’s neck and shoulders. The respondent maintained that the correct date of this injury was 5 March 2015;
(e)    whether or not the applicant could aggregate any of the injuries or body parts for the purposes of the permanent impairment claim, and
(f)    whether the applicant was incapacitated for work and, if so the extent of the incapacity.
As the time allocated to the conciliation and arbitration did not permit counsel to complete their submissions, I ordered that both parties serve and lodge written submissions. At the time of commencing this Statement of Reasons, the respondent had not provided written submissions in accordance with my direction. Those submissions were received on 5 May 2022 and are referred to below
By his submissions, the applicant discontinued his claim for whole person impairment. While it remains necessary to determine whether the various injuries he suffered are injuries simpliciter or disease injuries, it is no longer necessary to consider the issue of aggregation as it has no bearing on the incapacity issue.

SUBMISSIONS

The submissions of the parties are in writing and I do not propose to reiterate each of the arguments of counsel in these short reasons.
The general thrust of Ms Goodman’s argument was twofold. First, that all of the applicant’s injuries fell under the rubric of the “the nature and conditions of employment”. Secondly, while all of the medical evidence suggested that the applicant had a residual earning capacity, given his age, experience, and the influence of the multiple injuries which he sustained during his employment with the respondent, he had no current earning capacity from the time his employment was terminated in April 2021. In the alternative, he should be found to have “minimal capacity to work at minimal hours”. Fifteen to 20 hours per week at $20 per hour was suggested as a proper assessment of the applicant’s ability to earn in some suitable employment.
By her written submissions, Ms Compton argued that each of the applicant’s injuries had a “different mechanism”. At the time of onset of his various symptoms he was undertaking a “series of different and distinct tasks and distinct roles”.
In respect of incapacity, she submitted that the applicant continued in paid employment up to 3 February 2021 at which time he was working 32 hours per week. She submitted that there was no evidence to suggest that the applicant did not “continue to have capacity to work for those 32 hours in a similar occupation such as a cleaner.”
Ms Compton also submitted that the medical evidence did not prove that the applicant’s condition “was as a result of the nature and conditions of his employment as claimed.
By her submissions in reply, Ms Goodman states that the applicant relies upon the opinion of Dr Dixon to establish that each of his injuries were caused by the nature and conditions of his employment.
In respect of the incapacity, the applicant submits that the letter by which the respondent terminated his employment conceded that he was unable to “fulfil the inherent requirements of his role.” He reiterated that he was not working in a “real job” at the time of the termination of his employment and that the applicant’s case on incapacity is based upon the plethora of injuries he sustained in his employment.

EVIDENCE

The documents received into evidence are as follows:
(a) the Application to Resolve a Dispute (ARD) and the documents attached, and
(b) the Reply and the documents attached.
At the commencement of the arbitration hearing Ms Compton objected to the report of Dr Gehr, dated 7 December 2021. It infringed clause 44 of the Workers Compensation Regulations 2016. Further, it had not been served on the respondent in sufficient time to enable it to deal with the issues raised in the report. I ruled that the findings and opinion of Dr Gehr should be excluded from the evidence. Conversely, his history should be admitted into evidence
Ms Goodman objected to the multiplicity of medical reports from orthopaedic surgeons served in the respondent’s case. I ruled that the report of Dr Miniter infringed clause 44 and that the findings and opinion in his report should be excluded from evidence.
Ms Compton also objected to several aspects of the applicant’s statement. She submitted that it was impermissible for the applicant to recite medical evidence and, in particular, medical opinion in his statement. It was also impermissible for him to give opinion evidence as this infringed the PIC Rules which required that evidence be logical and probative. Ms Compton referred to several aspects of the applicant’s statement in which he had expressed opinions on medical issues or engaged in commentary on medical opinions contained in the reports of the qualified doctors.
Ms Goodman conceded that she could not rely on this evidence, other than to establish dates. Accordingly, I excluded from the evidence the recitations from medical reports save for the dates on which the applicant had sought treatment from medical practitioners. I also excluded evidence by the applicant that constituted opinion or commentary on medical issues in accordance with his counsel’s concession.

The applicant

The applicant’s evidence is contained in a signed statement dated 1 November 2021. By that statement, he recounts his pre-injury employment history. He records that he suffered an injury to his back in 1995 while in the employ of the Bankstown Council. He pursued a claim against the council arising from this injury which resulted in a settlement of “$30,000 nett to me”.
The applicant says that he commenced work for the respondent at its state regional distribution centre at Minchinbury through a labour hire company in 2008. He was initially employed as a picker/packer. However, he progressed to operate a high-reach forklift.
The applicant says that he suffered an injury to his left elbow caused by picking and grabbing boxes and other products in 2011. The respondent accepted liability for this injury. He was treated by Dr Gibbs, a general practitioner, at the onsite medical centre at Minchinbury. He underwent physiotherapy and undertook suitable duties until 11 October 2011 “when he certified me fit to return to work”. He says that while he returned to work the injury “flared up regularly” when he performed work duties.
In 2012, the applicant, experienced pain in his lower back while performing the work of a forklift driver. He reported this injury on 24 February 2012. Liability was accepted and the applicant worked restricted hours on suitable duties from 27 February 2012. He was treated by Dr McDonell at the Onsite Medical Centre. He maintains that the injury that he sustained at this time was “entirely different” from the earlier injury he suffered at the Blacktown Council in 1995. Following this injury, the applicant continued to perform suitable duties until he was certified fit to return to work on 27 April 2012.
Then, in 2013, the applicant experienced symptoms in his right trapezius and right side of the neck while performing his ordinary work as a high reach forklift driver. He saw Dr Yudeiken of the Mt Druitt Medical and Dental Centre. He performed suitable duties between 31 July 2014 and 5 November 2014 when he was certified fit to return to work. However, he says that his neck and right trapezius remained symptomatic and troublesome throughout 2015 and 2016. These symptoms have never completely dissipated.
The applicant associates the symptoms that he suffered in his neck with the work he performed on the high-reach forklift. He says this:
“The high-reach forklift when loaded only travelled in a sideways direction to the left. I thus was always turning my head to the left and looking up and down when I was driving the forklift. Whilst driving the forklift loaded, I was never able to turn my head to the right or stretch and properly rotate my neck.”
On 15 March 2015, the applicant says that he experienced severe pain in his jaw and right shoulder. He also states that his neck pain became worse. He lodged a claim form on 18 March 2015. His employer referred him to Dr Doumit Saad, a general practitioner. He was referred to Dr Ameer Ibrahim at the Sports Medicine Centre at Sydney Olympic Park.
In the second half of 2015, the applicant also experienced problems with his right elbow. Again, he was treated by Dr Saad. He was referred to Stephen Jackson a physiotherapist.
At about this time. he also experienced symptoms in his right hip. On 25 February 2016, the applicant was certified as fit for full duties. The applicant complains that he was “not given any time off work by doctors” even though he was struggling to move his neck. While it is not entirely clear from his statement, it is probable that the applicant did not return to forklift driving at that time. He describes work on light duties “looking for missing pallets”. He also states that he was “allocated duties sweeping the warehouse”.
However, the applicant states that he developed a right tennis elbow and symptoms in his right hand while performing that work. In particular, he experienced symptoms at the base of his right middle finger. Ultimately he was referred to a specialist in respect of the injury to his right middle finger and he underwent surgery under Dr Kumar at Westmead Private Hospital in May 2018. He was off work for 2 weeks following surgery. On his return to work he was placed on light duties working in the canteen “doing dishes and wiping tables”. He states that:
“During this period, I suffered flare-ups of neck pain.”
The applicant states that on 3 May 2018, he stood up and felt pain in his left knee. After a short absence from work, he returned to work on light duties in the canteen, and “towards the end of 2018 returned to my normal duties as a cleaner downstairs in the warehouse”.
The applicant saw Dr Sunner, the orthopaedic surgeon, on 28 September 2018 in respect of this injury. He gave a history of experiencing left knee pain after standing up from the lunch table and twisting on his left leg. Dr Sunner also recorded that the applicant had undergone an arthroscopy for a medial meniscus tear of the left knee in 2001.
Dr Sunner diagnosed a meniscal tear and a chondral defect in the femoral trochlear. He expressed the opinion that the description of the injury provided by the applicant was a “typical mechanism” by which both meniscal tears and chondral defects can occur. He thought that the applicant should have arthroscopic surgery the left knee.
On 22 May 2019, the applicant was cleaning behind a pallet when he twisted his knee while his foot was in a static position. He reported this incident to his employer in these terms. He says that he experienced “twinges in the right knee” before that time. He continues:
“Just prior to 22 May 2019, I reported that I had suffered an aggravation injury to my right knee making it worse.”
Again the respondent accepted liability for the injury. The applicant was referred to Dr Miniter, an orthopaedic surgeon, and Dr Perla for assessment by its insurer. He was treated, on this occasion, by Dr Lim, a general practitioner, who referred him to Dr Soo an orthopaedic surgeon. The applicant returned to work in August 2019 but suffered a recurrence of the difficulties with his knee. He attempted to return to work on several occasions in the second half of 2019 doing selected duties work at reduced hours, however he found this work difficult.

In February 2020, he underwent an arthroscopy and partial medial meniscectomy under Dr Christopher Soo. The respondent accepted liability for the cost of the surgery. The applicant complains of continuing pain and restriction of movement in his cervical spine and right trapezius, both elbows, both knees and low back. The balance of the applicant’s statement is a commentary on the medical opinion of Dr Powell which is not of any weight. More so as doctor’s report has not been received in evidence in these proceedings.

Dr Dixon

Dr Dixon saw the applicant at the request of his then solicitors via Zoom on 11 June 2020 and provided reports of 23 June 2020. He took a history that the applicant developed low back pain in 2011/2012 because of repetitive bending and stooping. This may have been exacerbated by getting on and off a forklift which he drove for “eight hours for eight months”. After commencing pilates and fitness and strengthening exercises he was “able to perform his normal duties”.
Dr Dixon also recorded that the applicant experienced neck pain which became severe in 2015 whilst working on the high-reach forklift. That extended to the right side of the jaw and the tip of his right shoulder. He was subsequently given light duties in the warehouse. However, whilst performing these duties he developed “tennis elbow symptoms on the right and triggering of his right middle finger.” Once he ceased using the small broom that the respondent had provided and used a larger broom “his tennis elbow subsided”.
Dr Dixon recorded that on 3 May 2018 the applicant “injured his left knee when he stood up after having lunch and experienced a popping sensation in the knee.” It was diagnosed as a torn meniscus.
Then on 22 May 2019 when placing his right foot between pallets to reach down he twisted his right knee and experienced “more severe pain in the knee”. The applicant was performing cleaning duties 24 hours per week at the time that he saw Dr Dixon.
Dr Dixon expressed the opinion that the applicant had suffered “significant symptoms in his neck, shoulders, elbows, back and knees” as a consequence of his employment. He diagnosed the following:
·        Cervical spondylosis with post-traumatic stiffness and bilateral shoulder brachialgia and trapezial muscle pain.
·        Bilateral shoulder pain and stiffness.
·        Bilateral tennis elbow.
·        Recurrent low back pain.
·        Trochanteric bursitis of the right hip.
·        Internal derangement of both knees with post-traumatic stiffness.
·        Post-traumatic stress disorder requiring antidepressants.
Dr Dixon thought that the applicant required continuing treatment. He thought that his capacity for work had been affected, although he noted that he was able to manage 24 hours per week.
By a supplementary report he assessed WPI in respect of the many body parts which he had assessed. These combined to total 26% WPI.

Dr Bosanquet

Dr Bosanquet saw the applicant at the request of the respondent on 17 August 2018 and provided a report of 23 August 2018. He obtained a history that the applicant had experienced neck pain whilst driving a high-reach forklift for a period of seven years. The applicant complained of pain in his right shoulder and neck.
The applicant told Dr Bosanquet that he had pain in the right side of his neck which could be exacerbated by lifting his arms above the shoulders. He also experienced headaches. Dr Bosanquet recorded that the applicant reported a good range of movement of the shoulders. On examination the applicant had restriction of rotation and lateral bending on both sides. However, there was full movement of the shoulders and a full range of movement in both elbows, wrists and hands.
Dr Bosanquet expressed the opinion that the applicant had “mild underlying degenerative changes in his cervical spine” which had been aggravated by the work of driving a forklift over a period of seven years. He expressed the opinion that the work aggravation had ceased. However the underlying degenerative changes would not resolve and “in fact may continue to deteriorate”. Thus, he was unable to perform pre-injury duties. He expressed the opinion that he was fit for suitable duties which “do not aggravate his condition”.

Dr Wallace

Dr Wallace, an orthopaedic surgeon, saw the applicant on 9 April 2020 and provided a report of 14 April 2020. He was qualified to comment on the state of the applicant’s knees.
He recorded that the applicant experienced pain in his right knee when walking down a flight of steps in March 2019. Then on 22 May 2019 while leaning forward weight-bearing on his right leg to pick up a box he felt pain in the right knee and the onset of swelling at the joint. He gave no history of any previous episodes of pain in the right knee.
Dr Wallace recorded that the applicant underwent surgery to his right knee on 28 February 2020 and was currently attending physiotherapy once per week. After considering the radiology, Dr Wallace expressed the opinion that in the work incidents he described the applicant had suffered sprains of the anterior cruciate and medial collateral ligaments. However he had also suffered a medial meniscal tear.
Somewhat oddly, Dr Wallace expressed the opinion that the medial meniscal tear had “now resolved” despite the history that the applicant underwent surgery in respect of that tear and was still in the process of rehabilitation. Dr Wallace thought that the applicant was fit to resume his pre-injury duties working 32 hours per week as a storeman.
Dr Wallace saw the applicant again on 9 September 2020. Dr Wallace took a consistent history of the onset of symptoms in the applicant’s back and neck. In respect of the left knee, he noted that the applicant had suffered an initial injury in 2001 while assisting a friend to move a refrigerator. That injury led to an arthroscopic debridement of the knee after which the symptoms resolved. He described the injury at work on 3 May 2018 thus:
“At that time he stood up from a sitting position after his lunch break and felt a ‘pop’ at the left knee. He noted pain and swelling at the left knee and was referred for physiotherapy.”
Dr Wallace took a history that the applicant’s left shoulder symptoms had resolved and he noted “no current pain at the right shoulder”. The applicant was working part-time light duties two hours per week with restrictions including “no lifting over 15kg, no forklift driving and no operating loaders. His current work duties involved checking pallets and inspecting stock.”
Presumably, on the basis of his history, Dr Wallace expressed the opinion that the applicant’s bilateral shoulder and bilateral knee injuries have resolved. He assessed impairment of the cervical spine, lumbar spine and right knee. He found 3% WPI. His report included the following:
“Mr Davila suffered an injury at his cervical spine as a result of the nature and conditions of his employment in the period 2013 to 2015 with the deemed date of injury being 5 March 2015. He suffered an injury at his lumbar spine as a result of a work incident in 2011. He suffered an injury at the right knee as a result of an incident at work on 22 May 2019. His work-related bilateral shoulder and left knee injuries have resolved. “

DISCUSSION AND FINDINGS

It is common ground that the applicant suffered numerous injuries while in the course of his employment. Several of these injuries have only marginal relevance to the question of the applicant’s incapacity since 2021. Nonetheless, given the way that the matter has unfolded, it is necessary to briefly refer to many of those injuries. Consistently, with the ruling I made in respect of the admission of various parts of the applicant’s statement, I propose to give no weight to his expressions of opinion as to the cause of each of his injuries.
It is not disputed that the applicant suffered an injury to his left elbow, which was diagnosed as tennis elbow by reason of his work prior to 24 January 2011. The applicant performed alternative duties for a period of eight months and then returned to his pre-injury duties. While the applicant says that the injury never “fully healed”, there is little in the way of medical evidence that it has contributed to the applicant’s incapacity for work after April 2021. Equally, there is no acceptable evidence that the work which the applicant performed after his return to work materially contributed to a worsening of the pathology in his elbow.
On 24 February 2012, the applicant reported that he had pain in his low back and left lower leg. Once again he was placed on suitable duties for restricted hours. Dr McDonell, a general practitioner who treated him at that time, diagnosed discogenic low back pain, probably at a level adjacent to the spinal level which the applicant reported that he injured in the employ of the Blacktown Council in 1995. The applicant says that although he returned to his pre-injury work on 27 April 2012, the injury flared up regularly when he performed duties on his return to work.
There is little evidence of ongoing treatment for a condition of the low back. However, both the qualified doctors who address this injury accept that it continues to be symptomatic. Dr Dixon plainly accepts that the applicant has had continuing symptoms since that time and Dr Wallace, the respondent’s qualified orthopaedic surgeon, does not express a contrary view. Thus, I accept that the applicant has continuing symptoms in his low back, which impinge upon his capacity to work.
The applicant suffered an injury to his neck and right trapezius muscle by reason of his work on the high-reach forklift prior to 2015. There is complete unanimity among the doctors who have specifically addressed the issue of the cause of the applicant’s neck symptoms. Equally, it is probable that the applicant’s neck symptoms have persisted.
Only Dr Bosanquet expresses the opinion that the effects of the injury had ceased and that the applicant’s neck symptoms were due to underlying degenerative changes in his cervical spine. Dr Calvache-Rubio, a general practitioner, expresses the opinion that the applicant’s neck condition was caused by his forklift work and aggravated by his subsequent cleaning work. Dr Dixon expresses the opinion that the injury to the applicant’s neck was caused by the:
“repetitive non-stop work performed on the high-reach forklift.”
Dr Wallace in the respondent’s case expresses a similar opinion on the causation of the applicant’s neck and shoulder pain. He also accepts that the applicant was still experiencing the effects of the injury when he examined him for the purposes of the permanent impairment claim. He said this:
“His employment with Woolworths Limited remains a substantial contributing factor to his cervical spinal and lumbar spinal conditions.”
Conversely, it is not evident that the applicant continued to suffer with intrinsic problems in his shoulders. The medical evidence does not contain any recent investigations of the shoulders. Although Dr Dixon, who examined the applicant by tele-health, found some restriction of movement of the shoulder, that is in contrast to the examinations of Dr Bosanquet and Dr Wallace. The former recorded that the applicant had free movement on his examination. Dr Wallace also recorded a good range of movement. Importantly, the applicant reported no current symptoms in his right shoulder and complete resolution of symptoms in his left shoulder. In those circumstances, the applicant has not established that he has residual problems in his shoulders which incapacitate him for work. Conversely, it is likely that he has shoulder pain referred from his neck from time to time.
In late 2015, the applicant developed pain in his right elbow and a strain of his right hip whilst he was performing cleaning duties. The applicant was treated by Dr Saad at the Sydney West Sports Medicine Clinic for these injuries. According to the applicant, his right tennis elbow symptoms subsided when he was provided with an appropriate broom to perform cleaning work. He was certified fit to resume his pre-injury duties on 25 February 2016. Again, I doubt that these injuries significantly contribute to the applicant’s incapacity for work after April 2021, although I note that Dr Dixon has assigned in respect of these body parts.
It is quite clear that the applicant continued to complain of neck pain throughout the balance of his employment. It is not entirely clear whether these cervical symptoms were related to the selected duty cleaning work that he performed after 2016. It is unnecessary to decide whether these symptoms were merely a manifestation of his previous injury or, alternatively, an aggravation or exacerbation of the neck symptoms arising from his work as a high-reach forklift driver. It is not essential that I determine that issue in these proceedings.
The applicant also suffered a compensable trigger finger injury during this period. Again, it is doubtful as to whether this contributes significantly to his incapacity.
On 3 May 2018, the applicant stood up from the lunch table and experienced pain in his left knee. He saw Dr Nguyen of Rooty Hill following this incident. He was off work for a short period of time. Given the examination findings of Dr Sunner, it is not surprising that he has continued to experience some symptoms in the left knee.
Then, on 22 May 2019, the applicant experienced pain and swelling in his right knee after twisting it at work. There seems little doubt that he suffered a tear or further tear of a right medial meniscus at that time. The applicant saw Dr Calvache-Rubio following this incident. The doctor recorded the following history:
“On Wednesday, 22 May 2019 Mr Davila reported that whilst at work he suffered a R knee injury after twisting his knee while cleaning around pallets. From my understanding of the injured worker’s material tasks of their role as a store-person/forklift driver, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I did not have medical evidence to indicate an alternative mechanism of injury but would be happy to consider such evidence if provided to me.”
On 1 February 2020, the applicant’s treating orthopaedic surgeon, Dr Gavin Soo wrote to the insurer and stated that his findings and need for surgery were consistent with the alleged incident on 22 May 2019. He stated that there was no evidence of a pre-existing condition.
In my opinion it is probable that the injury to the applicant’s left knee arose from the manner in which he stood up following his lunch on 3 May 2018. Certainly, Dr Sunner emphatically stated that this was its cause. That opinion is consistent with the balance of the medical evidence and consistent with common sense. To the extent that Dr Dixon’s opinion in respect of causation of the knee conflicts with Dr Sunner,I reject it.
Equally, it is likely that the injury to the applicant’s right knee arose as a result of the incident when he was walking down the stairs or, much more probably, the twisting of his right knee whilst he was working on 22 May 2019. Again, that view is consistent with the opinion of the treating surgeon and with the balance of the medical evidence in the case. Again, I prefer the view on causation of the applicant’s treating doctors to that of Dr Dixon.
While it is possible that the nature of the applicant’s work over the years made some contribution to the condition of his knees, the evidence does not establish that the knee injuries result from the nature and conditions of the applicant’s employment or that they consist in the aggravation etc of a disease to which the employment was the main contributing factor.
Rather, the condition in each knee was caused or materially aggravated by an incident or incidents in the course of the applicant’s employment. These are, therefore, injuries simpliciter and not injuries that consist in the aggravation of a disease for the purposes of s 16 of the 1987 Act.
The use of the phrase “nature and conditions of employment” is of longstanding. On numerous occasions, judges and members of the Presidential Unit have cautioned against its use in pleadings. In Mirkovic v David Holdings Pty Ltd; David Holdings Pty Ltd v Mirkovic (1995) 11 NSWCCR 656 (28 July 1995), his Honour Judge Neilson, in the former Compensation Court said this:
“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 micro traumata, 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.”
More recently, in Hua v Freedman Electronics Pty Ltd [2011] NSWWCCPD 60 (28 October 2011), Deputy President Roche said this at [68]:
“Third, the pleadings filed by the worker’s former solicitors are completely meaningless. They allege that Ms Hua suffered injuries as a result of the nature and conditions of the employment from 01/01/2000 to date and continuing. The Commission has repeatedly held that such pleadings are worthless. The profession is reminded that, if it is alleged that a worker received injury because of activities over time, such as repetitive lifting, that allegation should be made clear in the Application to Resolve a Dispute and in the particulars in support of the initial claim for compensation. The claim should also state if the injury is alleged to be a disease injury under s.4(b)(i) or 4(b)(ii) of the 1987 Act, or if it is a personal injury under 4(a) of that Act.”
While injuries to his knees are injuries implicit, the injuries to the applicant’s neck, shoulders and back, his epicondylitis and his trigger fingers probably result from repetitive microtrauma in the course of his employment. In Perry v Tannine Pty Ltd t/as Ermington Hotel & Others (1998) 16 NSWCCR 253, the late Judge Burke in concluding that carpal tunnel syndrome was a disease, referred to a definition of that word in Blakiston’s Gould Medical Dictionary, which is as follows:
“1. The failure of the adaptive mechanisms of an organism to counteract adequately the stimuli or stresses to which it is subject, resulting in a disturbance in function or structure of any part, organ or system of the body.
2. A specific entity which is the sum total of the numerous expressions of one or more pathological processes. The cause of a disease entity is represented by the cause of the basic pathological processes in combination with important secondary causative factors.”
In the case of the applicant’s neck, shoulders and back, his hip, epicondylitis, and his trigger fingers there can be little doubt that there was a failure of these ageing body parts to counteract or adequately cope with the stresses to which he was exposed at work. The injuries in each case are probably injuries which consist in the aggravation of a disease for the purposes of s 15 or, more probably, s 16. At the arbitration hearing, it was not suggested that there was any other contributing factor.
As this is a claim for an incapacity for work, the deemed or notional date of injury in respect of these body parts is the first date of incapacity. By fixing a date of injury, I have not determined the issue of aggregation. Plainly, on my findings the knee injuries cannot be aggregated with other injuries. However, the question of whether the injuries to the applicant’s neck, back, shoulders, elbows, and hip can be aggregated is best left until the applicant formulates and pleads a claim pursuant to s 66.

The principle stated by High Court of Australia in Accident Compensation Commission v C E Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 has recently been reiterated by the Court of Appeal in Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (12 April 2021). At the same time, some doubt was expressed about the correctness of one of the principles of statutory construction in Department of Juvenile Justice v Edmed [2008] NSWWCC PD 6. These matters will need to be considered if aggregation is sought for the purpose of referral of the matter to a Medical Assessor.

INCAPACITY

On the basis of my discussion of injury above, it is evident that the applicant has ongoing neck and back pain which would preclude him from performing work that involves heavy lifting or repetitive bending. It would also preclude him from performing work driving a high reach forklift. There is no dispute in respect of these matters. On my analysis of the medical evidence, it is probable that the condition of the applicant’s neck is more problematical than his lumbar spine. The latter condition does not appear to have been the subject of complaint to a treating medical practitioner over the last several years. However, the medical opinion evidence and the relevant radiological evidence does not suggest these conditions exclude the applicant from employment on the open labour market or from a “real job”.
In addition to the limitations placed on the applicant in respect of his neck and back, the applicant has had difficulties with both knees. His treating orthopaedic surgeon, Dr Soo, has expressed the unqualified opinion that the applicant is fit to return to the storeman’s duties that he was performing before that injury in respect of his right knee. By a report of 8 September 2020 to the applicant’s general practitioner, he recorded:
“Joe tells me that his knee is feeling great and he has regained his range of motion to the knee and his pain has almost resolved. Joe tells me that his hip flexors and groin gets tight still especially if he sits for a prolonged period of time.”
Dr Soo expressed the opinion that from the perspective of the applicant’s knee he was “happy for Joe to return to work in his full capacity”.
The condition of his left knee, however, continues to afflict the applicant. Given the opinion of Dr Sunner it is a difficult to accept Dr Wallace’s opinion that the effects of the injury to the applicant’s left knee has ceased. An MRI scan of the knee demonstrated a meniscal tear and chondral damage. While symptoms may have abated, there is no appropriate basis to determine that the effects of injury of deceased.
By reason of the condition of his left knee more than his right it seems likely that the applicant might not be fit for climbing or work that placed undue strain on his knees. That may include continuous standing for several days at a time.
Thirdly, the applicant has sundry minor problems that have not been the subject of medical treatment in recent times but have caused him difficulties in the past. I refer specifically to the issue of the applicant’s elbows, trigger finger, and hip. However, I anticipate that if the applicant refrained from work involving heavy lifting that he would not exacerbate these injuries.
Ms Goodman submitted, of course, that the applicant could not do a “real job” in the sense used by Roche DP in Wollongong Nursing Home Pty Ltd v. Dewar [2014] NSWWCCPD 55 (2 September 2014). I accept that the applicant has generally performed strenuous work throughout his lifetime and these restriction may exclude him from a significant part of the accessible labour market that is accessible to him. I also accept that a combination of his injuries may preclude the applicant from working in full time employment. Contrary to Ms Goodman’s submissions, however, I believe there are several areas of employment which the applicant could reasonably perform on a continuous basis notwithstanding his injuries.
It is true that the letter of termination of employment suggests that the applicant is incapable of persisting with his work at the respondent. The respondent has led no evidence as to the precise nature of his employment over the last several years. It may or may not have been a “made up” job. However, the medical evidence taken as a whole, and the applicant’s work history, persuade me that he is unlikely to be able to work a full 32 hour week in any job on the open labour market irrespective of whether it is available to him.
Turning to the issues to be determined pursuant to ss 36 and 37 of the 1987 Act, my impression of the medical evidence is that the applicant is capable of working five hours a day or 25 hours per week in retail employment, including the type of employment referred to by Ms Goodman at Bunnings, light courier or driving work, light bench work, or in certain aspects of the hospitality industry. In my opinion the applicant has been capable of earning $24 per hour or $600 per week in suitable employment as that term is defined in s 32A of the 1987 Act.
The application asserts that the applicant’s PIAWE is $1,156. It is probably correct that the findings I have made entitle the applicant to a further period of compensation pursuant to s 36. As this is not clear, however, I propose to order that the respondent pay the applicant weekly compensation during the first and second entitlement period’s in accordance with these reasons.
I, therefore, find and make orders as follows:
(a)    discontinue the claim for permanent impairment compensation;
(b)    on or about 3 May 2018 the applicant suffered personal injury to his left knee;
(c)    on or about 22 May 2019, the applicant suffered personal injury to his right knee;
(d)    during the course of his employment the applicant suffered injury to his neck, shoulders, back, and elbows and the condition known as trigger finger;
(e)    these injuries are deemed to have occurred for the purposes of ss 15 and/or 16 on 29 April 2021, the first day of incapacity alleged in the ARD;
(f)    as a result of a combination of these injuries the applicant has been partially incapacitated for work since 29 April 2021 and has been able to earn in suitable employment the sum of $600 per week;
(g) order that the respondent pay the applicant weekly compensation pursuant to ss 36 and 37 in accordance with these reasons;
(h)    liberty to apply, if necessary, in respect of the calculation of the claim for weekly compensation;
(i)    strike out the claim for future medical expenses;
(j)    order that the respondent pay the applicant’s medical and hospital expenses in respect of the injuries referred to above in accordance with these reasons.

[2022] NSWPIC 231

20 May 2022