Fletcher v GrainCorp Operations Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Fletcher v GrainCorp Operations Limited & Ors [2023] NSWPIC 67
APPLICANT:	David Fletcher
FIRST RESPONDENT:	GrainCorp Operations Limited
SECOND RESPONDENT:	HealthShare NSW
Member:	Cameron Burge
DATE OF DECISION:	21 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation, weekly payments and medical expenses in respect of a frank injury to the neck and shoulders and an injury by way of aggravation of a disease process to the cervical spine and upper extremities (shoulders) due to nature and conditions of employment with both respondents; the respondents each deny liability, the first respondent denied there was any injury caused by the nature and conditions of employment; said that even if there was such an injury the second respondent would be liable as the last employer whose employment was in the nature of which alleged caused any aggravation; disputed the applicant’s claimed incapacity and also alleged the applicant’s claim was out of time by virtue of the operation of sections 254 and 261; the second respondent denied the nature and conditions of the applicant’s employment with it relevantly caused any aggravation to a disease process, disputed the claim of incapacity and also relied on the time limit provisions in section 254 and 261; Held – the applicant suffered an injury to his neck and shoulders in the course of his employment with the first respondent and by way of aggravation of a disease process to his cervical spine and upper extremities (shoulders) with a deemed date of injury of 20 November 2009 with the second respondent; the applicant’s claim against the first respondent in the interests of EML and the second respondent is not precluded from being made by virtue of the operation of sections 254 and 261; remit the claim for permanent impairment compensation arising from both injuries to the President of the Personal Injury Commission for referral to a Medical Assessor; the claims for medical expenses and weekly compensation are adjourned for further telephone conference after the issuing of any Medical Assessment Certificate regarding the claim for permanent impairment compensation pursuant to Jaffarie v Quality Castings Pty Ltd.
determinations made:

The Commission determines:

The applicant suffered an injury to his neck and both shoulders in the course of his employment with the first respondent on 14 November 1996.
The applicant suffered an injury in the course of his employment with the second respondent in the nature of an aggravation of a disease process to his left upper extremity (shoulder) and right upper extremity (shoulder) with a deemed date of injury of 20 November 2009.
Award for the first respondent (in the interests of EML) on the claim for injury alleged to have arisen as a result of the nature and conditions of employment.
Award for the second respondent on the claim for injury by way of aggravation to the cervical spine.
The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the impairment arising from the following:
(a)    Date of injury:  14 November 1996
Body systems referred                  Neck, left shoulder, right shoulder
Method of assessment:                 Table of Disabilities.
(b)    The Medical Assessor is to also assess the whole person impairment to the cervical spine, left upper extremity (shoulder) and right upper extremity (shoulder) arising from the injury referred to in (a) above.
(c)    Date of injury:  20 November 2009 (deemed)
Body systems referred:                 left upper extremity (shoulder) and right upper extremity (shoulder)
Method of assessment:                 whole person impairment.
The documents to be referred to the Medical Assessor to assist with their determination are to include the following:
(a)    this Certificate of Determination and Statement of Reasons;
(b)    Application to Resolve a Dispute and attachments;
(c)    Reply of the first respondent (as self-insurer) and attachments;
(d)    Reply of the first respondent (in the interests of EML) and attachments;
(e)    Reply of the second respondent and attachments;
(f)    first respondent’s Application to Admit Late Documents dated 24 August 2022 and attachments, and
(g)    second respondent’s Application to Admit Late Documents dated 23 August 2022 and attachments.
Award for the applicant against the first respondent (self-insured) on the claim for s 60 expenses arising from the injury on 14 November 1996.
Award for the applicant against the second respondent on the claim for s 60 expenses arising from the injury with a deemed date of 20 November 2009.
The claims for weekly compensation and medical and treatment expenses are to be listed for further telephone conference upon the issuing of any Medical Assessment Certificate.

STATEMENT OF REASONS

BACKGROUND

David Fletcher (the applicant) claims weekly compensation, medical and treatment expenses and permanent impairment compensation in relation to alleged injuries suffered in the course of his employment with GrainCorp Operations Limited (the first respondent) and HealthShare NSW (the second respondent).
The applicant was employed by the first respondent as a grain handler and labourer from 13 November 1996 until 18 December 2004.
On 30 December 2004, the applicant commenced permanent part-time employment with the second respondent as a laundry and linen delivery driver for the Central West Linen Service. He remained in that employment until 10 October 2009.
There is no issue that on 14 November 1996, the applicant was working at the Yarrabandai Grain Silo. According to his statement, the applicant entered a self-operated lift cage in the silo and was shown how to use it by a workmate. The applicant states that when he pulled on the lift rope, the elevator went up extremely quickly and when it reached the top of the silo, the lift slammed to a halt. According to the applicant, he threw up his arms to protect his head and was slammed to the top of the lift and then landed crumpled on the lift floor. He states he had a cut on his forehead, felt dizzy and had aches and pains all over his body, particularly in his neck and shoulders.
The fact that there was an injurious incident on 14 November 1996 is not in doubt. However, the first respondent alleges the injury received by the applicant on that date was a laceration to his head, not any injury to his shoulders and/or neck.
The applicant alleges that as a result of the incident on 14 November 1996, he suffered an injury to his neck and to both shoulders.
Additionally, the applicant alleges that the nature and conditions of his employment with the first respondent as a grain handler and labourer up to 18 December 2004 were such that they lead to a disease of gradual onset in his left and right shoulders and neck, or alternatively aggravated that disease process. The deemed date of this alleged injury is that of the making of a permanent impairment claim on the first respondent, namely 31 August 2018.
Additionally, the applicant alleges that his employment with the second respondent, which involved delivering loads of laundry for hospitals, lifting bags of linen and pushing trolleys loaded with linen were a substantial contributing factor to his left and right shoulder and neck injuries, resulting in a disease of gradual onset or an aggravation to a disease of a gradual onset. The applicant alleges the deemed date of that alleged injury is 10 October 2009, being the date on which the applicant last worked for the second respondent. The second respondent alleges the deemed date is in fact 31 August 2018, being the date of the making of a claim for permanent impairment compensation against it.
The first respondent was, save for a short period of time towards the end of the applicant’s employment, self-insured. For the balance of the applicant’s employment, it was insured by Employer’s Mutual Limited.
The three insurers standing behind the two respondents in this matter have each issued dispute notices concerning the applicant’s alleged injuries. The bases of the respective denials of liability are summarised under the heading “issues for determination” below.
The applicant seeks payment of weekly compensation from 10 October 2009 until 25 December 2017, payment of reasonably necessary medical and treatment expenses and also brings a claim for permanent impairment compensation in respect of injuries to the right upper extremity, left upper extremity and cervical spine together with seeking an assessment of the neck, right arm at or above the elbow and left arm at or above the elbow pursuant to the table of disabilities.
The respondents have also placed in issue the question of capacity and also the amount of weekly payments, if any, payable to the applicant.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute in relation to the claim brought against the first respondent as self-insurer.
(a)    whether the applicant suffered an injury on 14 November 1996 to his neck and both shoulders;
(b)    whether the applicant suffered injury by way of a disease process with the first respondent;
(c)    if the answer to (b) is in the affirmative, did the first respondent last employ the worker in employment to the nature of which the disease or its aggravation was due, and
(d)    whether the applicant suffered incapacity as alleged, or at all.
The parties agree that the following issues remain in dispute as between the applicant and the first respondent in the interests of EML:
(a)    the delay in making a claim on the part of the applicant and whether he is entitled to bring such a claim out of time;
(b)    whether EML was on risk at any relevant date of injury, and
(c)    incapacity for employment and the reasonable necessity of any medical and treatment expenses.
The parties agree that the following issues remain in dispute as between the applicant and the second respondent;
(a) whether the applicant suffered injury to the claimed body parts as a result of an aggravation to a disease process caused by his employment with the second respondent;
(b) if so, whether the applicant’s claim against the second respondent is out of time pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
(c) incapacity for employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a conference and hearing over two days on 29 August 2022 and 31 October 2022. 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.
At the hearing, the applicant was represented by Mr Perry of counsel instructed by Ms Becker. The first respondent as self-insurer was represented by Mr Grant of counsel instructed by Mr Ainsworth. The first respondent in the interests of EML was represented by Mr Baran of counsel instructed by Mr Baker, and the second respondent was represented by Mr Barnes of counsel instructed by Ms Maiuolo.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply of the first respondent as a self-insurer and attached documents;
(c)    Reply of the first respondent in the interest of EML and attached documents;
(d)    Reply of the second respondent and attached documents;
(e)    Application to Admit Late Documents (AALD) of the first respondent as self-insurer and attached documents dated 24 August 22, and
(f)    the second respondent’s AALD and attached documents dated 23 August 2022.

FINDINGS AND REASONS

Whether the applicant suffered an injury to his neck and shoulders on 14 November 1996

Applicant’s submissions

Mr Perry noted the applicant was in good health prior to the allegedly injurious incident on 14 November 1996. The applicant’s evidence surrounding that incident is as follows:
“On 14 November 1996 I was working at the Yarrabandai Grain Silo. I asked if I could look out the top of the silo to see the view. I was shown how to operate the lift cage in the silo by Victor Miller. He told me to place my foot on the pedal on the floor and leave it there until I reached the top. He also showed me how to secure the cage door and pull on the rope to start the lift moving.
When I pulled on the lift rope, I found that the lift went up upwards extremely quickly. I immediately realised it was travelling too fast. It went all the way up in about 6-8 seconds. I thought that there would be a shock absorber at the top of the silo, but the lift slammed into the top of the silo. I threw up my arm to protect my head and was slammed to the top of the lift and then landed crumpled on the lift floor. I had a cut on my forehead, felt dizzy and had aches and pains all over my body, particularly in my neck and shoulders.”
The applicant further described the incident in broadly consistent terms in a further statement dated 16 September 2019. Relevantly, the applicant stated that his neck and shoulders began to hurt almost immediately, but he was so busy in his new job he did not think anything of it and assumed that because he was new to physical work with the first respondent, having started only several days or a week earlier, he was just not used to so much physical exertion.
Mr Perry noted each of the applicant’s Independent Medical Examiner (IME) Dr Bosanquet and the first respondent’s IME, Dr Anderson concluded the 14 November 1996 incident was predominantly responsible for the applicant’s ongoing neck and shoulder issues. Dr Bosanquet concluded in his report dated 28 June 2018:
“The accident on 14 November 1996, when Mr Fletcher allegedly put his arms above his head to protect himself when the lift cage hit the roof, would be consistent with bilateral rotator cuff injuries and the injury to his cervical spine…
It is my opinion there has been an acute injury on 14 November 1996 with aggravation of underlying degenerative changes in both shoulders. There has been a soft tissue injury to his cervical spine with aggravation of underlying degenerative changes.”

Dr Anderson, IME for the first respondent provided the following conclusion:
“Diagnosis
27.    Mr Fletcher has sustained an impact injury to his head which resulted in a laceration which needed suturing.
Cause
28.    It is likely that this also resulted in a musculoligamentous strain of the cervical spine which, in turn, has deteriorated further with quite extensive accelerated degenerative change.
29.    In the same event it looks as though he sustained some form of jarring or wrenching injury to both shoulders.”
The applicant also relied on a number of alleged aggravations suffered to his shoulders and neck in the course of his employment with the first respondent. They are set out at paragraphs 33 and 34 of his statement dated 23 November 2018. These alleged aggravations are relevant, as the applicant relies on the nature and conditions of his employment with the first respondent after November 1996 as a further basis for injury.
The applicant worked for the first respondent until 2004, at which time he was advised there was no further work available for him. He then began working for the second respondent on a part-time basis.
Mr Perry noted the first respondent’s IME, Dr Anderson, took a history from the applicant regarding the November 1996 incident. He noted the effect of the incident on the applicant, namely that he “struggled through” with his work with the first respondent until 2004, when he joined the second respondent.
When specifically asked whether the applicant suffered neck and shoulder injuries in the November 1996 incident, Dr Anderson replied:
“As advised, it looks as though the impact event to his head resulting in the laceration, which needed suturing, was probably responsible for the initial musculoligamentous strain of the spinal column. In this event he probably fell awkwardly and sustained the initial injuries to both shoulders.”
The applicant submitted that the versions of events provided by the applicant in relation to the index incident in November 1996 were broadly consistent, and regardless of the precise circumstances of that incident, there can be no challenge to the fact the applicant was knocked down and fell to the floor of the lift by a severe compressive blow to the head, suffering injury to his shoulders and neck.

First respondent (Self-insured) submissions

Mr Grant noted the applicant’s departure from the first respondent’s employment was owing to a lack of work, not to any injury. He conceded the applicant suffered a laceration to the top of his head in November 1996 incident, however, noted the first respondent disputes any injury to the neck or shoulders arising from that incident.
Mr Grant noted a Supervisors Accident Investigation Report Form found at page 48 of the Application. He noted the document referred to the applicant striking his head while cleaning the boot of the silo and there being no mention of any incident in a lift.
That version of events is repeated in the Workers Compensation Claim Form at page 49 of the Application, however, it is noteworthy that both documents were completed and signed by Rick McLean, the silo manager, and not by the applicant.
Mr Grant rhetorically asked whether the applicant could reasonably have carried out his heavy work for a further six years from the date of the alleged injury in November 1996 until ceasing work with the first respondent in 2004 if he had suffered neck and shoulder injuries in the incident at issue, before then undertaking further heavy work with the second respondent until 2009.
The first respondent relied on a general practitioner (GP) clinical entry from 21 March 2003 in which the applicant complained of right shoulder stiffness and pain, noting he had played rugby for six years. There was no mention in that entry either of the 1996 injury or to any problems with the neck and the left shoulder.
Mr Grant also referred to the entry of 24 June 2003, in which the applicant presented complaining of lower back pain after lifting wood. He submitted that if the applicant had actually injured his shoulders and neck in 1996 as alleged, it is unlikely he would have been able to engage in lifting wood as he was before he presented at his local doctor.
The first respondent submitted the clinical records show the applicant made no complaint of any ongoing neck and shoulder issues arising from the 1996 incident until 27 January 2009, at which time the applicant said he had suffered a painful right shoulder for 20 years, and had pain in his neck.
In January 2010, the applicant’s general practitioner referred him to Dr Ashton, treating orthopaedic surgeon for right shoulder symptoms against a stated background of “the precipitating injury/trauma [is] not really certain.”
Mr Grant relied on a lack of complaint by the applicant about the 1996 incident until Dr Ashton’s report in 2018. However, in that report Dr Ashton recounts the applicant telling him about the silo injury when he first consulted Dr Ashton in 2010.
Nevertheless, Mr Grant emphasised Dr Ashton’s lack of certainty in relation to causation of the shoulder issues in his report dated 17 April 2018. In that report, Dr Ashton said:
“The accident on 14 November 1996 would be consistent with his injury that I treated in 2011. This information is based on the fact that there was no report of any other shoulder injury or symptoms prior to his work-related injury and problems ever since.
When questioned on first review, however, he did not think this shoulder injury was a work reported injury and hence he was never treated as a work compensable claim.”

At page 245 of the Application, Dr Ashton said:
“Given the work-related injury that initially seemed to cause his work-related symptoms at Grain Corp and his surgery in 2011, it is difficult to state categorically how much of the shoulder problem was related to his original injury at Grain Corp versus the fairly heavy duties he was performing at Central West Linen Service.
I suspect, however, that his original Grain Corp injury was the original instigating factor that led to rotator cuff damage. If damage was present from the original work injury, the heavy work that he performs afterwards may well have aggravated that problem. As a result, I would say, it was an aggravation of a pre-existing condition rather than the causative nature.”
Mr Grant submitted there was no basis to establish a causal connection between the 1996 incident and the applicant’s neck and shoulder complaints. He submitted the Commission would accept the applicant’s injury is in the nature of a disease process and as a result, the second respondent would be liable pursuant to s 16 of the Workers Compensation Act 1987 (the 1987 Act) as the employer who last employed the applicant in employment which was a substantial contributing factor to the aggravation of that disease.
Mr Baran, acting for the first respondent in the interest of EML, made submissions broadly consistent with those of Mr Grant as to the nature of any injury suffered in the November 1996 incident.

The second respondent’s submissions

For the second respondent, Mr Barnes largely directed his submissions to the claimed injury against his client. He nevertheless noted Dr Ashton concluded the incident in November 1996 was the genesis of the applicant’s shoulder symptoms.
Mr Barnes did, however, submit the applicant’s evidence generally was unreliable and had been tailored to suit his case. Mr Barnes also submitted the applicant’s IME, Dr Bosanquet, found the applicant’s shoulder injuries were both related to the frank incident in November 1996. In his report, in answer to a question as to whether the applicant’s employment with the second respondent aggravated a disease process, Dr Bosanquet replied:
“It is my opinion that Mr Fletcher’s employment with Health West Central Linen Service would not have affected either shoulder. From his description of the work, there was no overhead use of either arm. It should not have affected his cervical spine...
As stated above, it is my opinion that Mr Fletcher’s employment with Health West Central Linen Service did not aggravate, accelerate, exacerbate or deteriorate a disease of gradual onset.”
The second respondent also relied on the report of Dr Ashton dated 17 April 2018, in which the right shoulder problems were said to be attributable to the 1996 incident.
Mr Barnes noted the report of Dr Anderson dated 11 October 2021, found at page 255 of the Application. He noted Dr Anderson attributed the shoulder injuries to the 1996 incident.

Consideration

The applicant alleges the incident on 14 November 1996 caused a frank injury to his neck and shoulders. There is a useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro). That case makes clear what is required to constitute “injury” is a “sudden or identifiable pathological change.” In Castro, a temporary physiological change in the body’s functioning by way of atrial fibrillation, without pathological change, did not constitute an injury under s 4 of the 1987 Act.
Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear, as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change.”
In this matter, none of the respondents sought to cross-examine the applicant. No lay evidence was led by the first respondent challenging the evidence of the applicant as to the circumstances of his alleged injury. Both respondents made submissions questioning the accuracy of the applicant’s evidence. In the second respondent’s case, those submissions went so far as to allege the applicant tailored his evidence to suit his claim.
I reject that submission. No application was made by any respondent to cross-examine the applicant. It is one thing to query a witness’ evidence owing to the effluxion of time or the natural propensity of people to reconstruct events, even with the best of intentions. It is quite another to allege an applicant has tailored his evidence. There is no reasonable basis in this matter for asserting this is the case, for reasons which are dealt with more fulsomely below.
On balance, for the following reasons I accept the applicant suffered an injury to his shoulders and neck in the course of his employment with the first respondent on 14 November 1996.
The respondents referred to the Supervisor’s Accident Investigation Report and Workers Compensation Claim Forms found at pages 48-51 of the Application. Those documents described an incident where the applicant hit his head while cleaning the boot of the silo. The applicant specifically contradicted that account in his statement evidence, maintaining the injurious incident took place in the silo lift as alleged.
I accept that evidence of the applicant. The documents at pages 48 to 51 of the Application are not the applicant’s documents. One is self-evidently a supervisor’s report. The other bears the signature of Rick McLean, the silo manager.
Mr Perry for the applicant submitted, and I have little difficulty accepting, that notwithstanding the 14 November 1996 incident, the applicant continued to work owing to his stoicism and work ethic.
It is trite to say the applicant must prove not only an injurious event but that the event caused a relevant pathological change in the claimed body systems. In this matter, significant support for that requirement being satisfied is found in the report of the first respondent’s own retained specialist, Dr Anderson.
Dr Anderson noted the applicant had gross dysfunction of his cervical spine and both shoulders. He took a detailed history from the applicant as to the circumstances of the November 1996 incident. The precise mechanism of the instant the applicant hit the roof of the lift as told to Dr Anderson vary slightly from the description provided to Dr Bosanquet and Dr Ashton. However, as Mr Perry noted, whether the applicant put his hands up to soften the impact with the lift roof or not, there was obviously a deep laceration caused by a significant compressive blow to his head.
Dr Anderson described the applicant as friendly, cooperative and pleasant. He formed the view that “if [the applicant] could have found a useful occupation which he could have done, he would have willingly taken it on.”
That observation is consistent with the history taken by Dr Anderson that, despite experiencing pain in his neck and shoulders post injury, the applicant did not take steps to have his symptoms treated, largely because he was trying to maintain his job.
Dr Anderson took a careful work history from the applicant regarding the nature and conditions of his post-November 1996 duties with both the first and second respondents. Having done so, Dr Anderson then provided an opinion that the November 1996 incident resulted in a musculoligamentous strain of the cervical spine together with jarring or wrenching injuries to both shoulders (page 258 of the Application). When asked whether the applicant suffered a personal injury to his neck and both shoulders in the lift incident, Dr Anderson replied:
“As advised, it looks as though the impact event to his head resulting in the laceration which needed suturing, was probably responsible for the initial musculoligamentous strain of the spinal column. In this event, he probably fell awkwardly and sustained the initial injuries to both shoulders.”
The applicant’s IME, Dr Bosanquet, also took a history of the lift incident and of the applicant suffering pain in his neck and shoulders since that time. He noted the cuff repair performed by Dr Ashton in 2011 to the right shoulder.
After examining the applicant and taking a history, Dr Bosanquet provided the following opinion:
“This 61-year-old man, who worked with Grain Corp for some years, has injured both shoulders during the course of his work on 14 November 1996. He has required surgery to the right shoulder and has ongoing pain and restricted movement in both shoulders. He also has had a soft tissue injury to his cervical spine....
It is my opinion there has been an acute injury on 14 November 1996 with aggravation of underlying degenerative changes in both shoulders. There has been a soft tissue injury to his cervical spine with aggravation of underlying degenerative changes.”
An applicant is able to rely on injury simpliciter despite the existence of an underlying conditional disease process, as was highlighted in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
Notwithstanding the submissions of the respondents regarding lack of complaint over many years after the 1996 incident, it is in my opinion noteworthy, that when the applicant was referred to Dr Ashton in 2010 in relation to his right shoulder, the history was:
“He remembers a shoulder injury that occurred 15 years ago at work when a lift he was riding in hit the roof causing a jarring type injury. After this, he developed some soreness over the following few days. I do not think otherwise it has been a reported injury to date. He has had a degree of pain in the shoulder for some time. Physiotherapy to date has not helped much.”
That history was volunteered to Dr Ashton long before the applicant brought these proceedings or made a claim and was provided in the context of a treating specialist examination. In my view, that is telling and answers the suggestion the applicant’s reference to the November 1996 incident was one concocted for the purpose of this claim and these proceedings.
Whilst there is no question as to there being a lengthy delay in the recording of shoulder and neck symptoms to a GP post-1996, that is not conclusive of an absence of injury. This is particularly the case where no respondent has served any expert evidence which disputes a finding of injury arising from the lift incident in 1996.
Indeed, the first respondent obtained a report from Dr Anderson which is supportive of the applicant’s case. Moreover, the absence of corroboration is not fatal to a party in a civil case such as this one: see Baker v Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, where Roche DP cited the Court of Appeal decision in Channa v Zahrour [2011] NSWCA 199 and stated it is inappropriate to rely solely on a lack of corroboration to find an absence of injury (at [80]).
In this matter, the expert medical evidence overwhelmingly supports a finding of injury arising from the 1996 incident. Whilst I accept there are variances in the precise details of the applicant’s history of the lift incident, he has steadfastly maintained his neck and shoulder issues arose from that time, a history which in my opinion is consistent with the nature of the impact injury suffered on that occasion.
Additionally, the medico-legal experts in this matter all suggest a finding of injury caused by the 1996 incident. Those opinions are in turn supported by Dr Ashton, treating orthopaedic surgeon with regard to the applicant’s right shoulder, being the injury which he treated.
Accordingly, I find on the balance of probabilities the applicant suffered injury to his shoulders and neck in the incident on 14 November 1996.

Whether the applicant suffered injury by way of aggravation of a disease process in the course of his employment with either respondent.

Applicant’s submissions

Mr Perry submitted the applicant’s post-1996 employment with each of the respondents caused an aggravation of a disease process in the neck and both shoulders. He noted the work carried out by the applicant with both the first and second respondent was demanding and heavy. The applicant deposes to that work in his statements, and I do not propose to repeat the nature of the duties in detail in these reasons, as there was no challenge by any party to the duties as described.
Mr Perry submitted the applicant was plainly not someone who went to the doctor lightly, and that the evidence disclosed when he was referred to Dr Ashton in 2009 for right shoulder investigation, they demonstrated a full thickness tear of the supraspinatus.
The nature of the right shoulder condition is not seriously challenged. There can be no issue the applicant’s right shoulder was so serious that he came to have open acromioplasty and rotator cuff repair on 25 October 2011. The applicant’s IME, Dr Bosanquet, did not attribute any of the issues with the applicant’s affected body systems to the nature and conditions of the duties carried out with either respondent. He specifically refuted the suggestion the applicant’s employment with the second respondent aggravated any injury to the neck or shoulders, while he omitted to mention the nature and conditions of the applicant’s work with the first respondent between 1996 and 2004.
Mr Perry sought to distance the applicant from Dr Bosanquet’s opinion concerning the nature and conditions of employment, noting the applicant’s work with the first respondent was plainly much heavier than Dr Bosanquet had taken into account.
By contrast, the applicant noted Dr Anderson, IME retained by the first respondent, concluded post-November 1996 employment factors were relevant causes of the applicant’s condition. Those duties included wrenching open rusted beams on vehicles and servicing and securing heavy tarpaulins in the course of his employment with the first respondent, together with the heavy work with the second respondent in the commercial laundry business. Dr Anderson suggested the work with the second respondent would have contributed to the applicant’s shoulder issues, but not to the neck.
The applicant relied on treating surgeon, Dr Ashton, whose report dated 17 April 2018 noted the main contributing factor to the applicant’s shoulder issues was the November 1996 accident, however, he did not rule out heavy manual labour leading to “gradual progressive degenerative change” of the rotator cuff.
When asked to comment on any attribution to the duties carried out with the second respondent in relation to the right shoulder, Dr Ashton said:
“If the damage was present from the original work injury [the 1996 incident], the heavy work that he performs afterwards may well have aggravated that problem. As a result I would say was an aggravation of a pre-existing condition rather than the causative nature.”
Mr Perry noted the alleged injury was the aggravation to the disease process in the applicant’s shoulders caused by his duties with both respondents.

First respondent’s submissions

Mr Grant, for the first respondent as a self-insurer, relied on Dr Anderson’s opinion and submitted given the applicant did heavy work with the second respondent, the aggravation of the changes in his shoulders amount to a disease process, and as such the second respondent was liable as the last relevant employer pursuant to s 16 of the 1987 Act. For the first respondent in the interests of EML, Mr Baran submitted if the applicant’s injuries were caused by the 1996 incident, then the first respondent as self-insurer would be liable for those injuries, and if there was an injury by way of an aggravation of a disease process, then plainly, the second respondent was the last relevant employer pursuant to s 16 of the 1987 Act and therefore liable.

The second respondent’s submissions

Mr Barnes submitted if there was an injury for which his client is liable, then the deemed date of injury should be in 2018, when the claim for permanent impairment compensation was made. He made that submission because the applicant admitted in his statement evidence he did not cease work due to any impairment, but because he lost his driver’s licence.
Mr Barnes submitted the applicant had not satisfied the requirements of establishing his employment with the second respondent was the main contributing factor to any aggravation, pursuant to s 4(b)(II) of the 1987 Act. He submitted the applicant did not hurt his neck or shoulders in his employment with the second respondent.

Consideration

Competing submissions were made by the applicant and second respondent as to the appropriate deemed date of injury for any aggravation, should one be established. The competing dates are important, as the applicant asserts the deemed date of injury should be when he first suffered an incapacity for employment (on his case in November 2009); whereas the second respondent asserts the date of injury should be when the claim for permanent impairment compensation was made on it, namely in August 2018. Whether either date is applicable, however, first depends on a finding of there being a disease process and an aggravation to it.
For the following reasons, I am satisfied on the balance of probabilities that the applicant suffered a disease process to his shoulders after the 1996 incident.
The applicant gave evidence as to the nature and conditions of his employment, and as already noted, there is no issue the duties carried out with both respondents were heavy. Of the three specialists who have provided reports in this matter, Dr Bosanquet is of the view there is no aggravation, Dr Anderson ascribes one third of the applicant’s shoulder impairments to the second respondent and Dr Ashton also refers to a disease process potentially aggravated by the applicant’s employment.
I accept the applicant’s evidence his neck and shoulders continued to cause him problems. I am also satisfied, based on the preponderance of the medical evidence that those duties caused an aggravation to the applicant’s shoulder condition. I am not satisfied on the balance of probabilities that the applicant’s neck condition was aggravated by his duties with either respondent. Dr Ashton makes no comment surrounding the applicant’s neck, whilst Dr Bosanquet rules out any aggravation at all. Dr Anderson, who was retained for the first respondent, indicated there was no aggravation to the neck despite conceding such aggravation was present in the shoulders.
In my view, the preponderance of the medical evidence supports a finding that there was no aggravation to the applicant’s neck caused by the nature and conditions of his employment with either respondent. I do, however, find that medical evidence is supportive of such an aggravation having taken place to his shoulders as a result of his employment. Dr Ashton said in his report in 2018:
“Given the work-related injury that initially seemed to cause his symptoms at Grain Corp and his surgery in 2011, it is difficult to state categorically how much of the shoulder problem was related to his original injury at Grain Corp versus the fairly heavy duties he was performing at Central West Linen Service.
I suspect, however, that his original Grain Corp injury was the original instigating factor that led to rotator cuff damage. If the damage was present from the original work injury, the heavy work that he performed afterwards may well have aggravated that problem. As a result, I would say it was an aggravation of a pre-existing condition rather than the causative nature.”
The phrase “causative nature” used by Dr Ashton is in my view directed towards the origins of the applicant’s shoulder pathology, rather than any aggravation to it. That is consistent with the doctor’s differentiation of what he concedes is an aggravation caused through the nature and conditions of employment and what he then describes as “the causative nature” of the original injury.

For his part, Dr Anderson noted the 1996 event and then stated:
“Further down the track there appears to have been other events while working at Grain Corp where the shoulders deteriorated further. Later on, while working with the Central West Linen Group, the work was quite heavy and it is highly likely that this would have contributed to the further deterioration of the shoulders but not of the cervical spine.”
When asked whether the applicant suffers from a disease process, and whether employment with the second respondent would have contributed to it, Dr Anderson replied:
“Mr Fletcher does experience a ‘disease process’ currently although it looks as though the start of this, or the major contributing factor resulting in accelerated degenerative change was most likely the event in November 1996.
[The extent of contribution from employment with the second respondent] is a difficult issue to quantify with any degree of accuracy. Nevertheless, in considering how he did the different components of each of these jobs, I would come to the conclusion that working with Central West Linen would reasonably have contributed about one third of the development of the deterioration of both shoulders but would not have contributed to the condition of his cervical spine.”
Dr Bosanquet ruled out any contribution from duties with the second respondent to contributing to the applicant’s condition. However, I am not persuaded that Dr Bosanquet’s opinion, in relation to the effect of the applicant’s employment with the second respondent, is accurate. When taking the history of injury, Dr Bosanquet stated:
“He was then doing part-time work with Central West Linen approximately nine hours a week of three hours a day, three days a week. When he lost his motor vehicle licence, he was unable to keep working with Central West Linen and then had a problem with both shoulders.”
In my view, that history is cursory, and does not present an accurate picture of the applicant’s duties with the second respondent, as set out in his uncontested statement evidence. Although the respondents questioned certain aspects of the applicant’s evidence, there was no challenge to the nature of the heavy work carried out by him with the second respondent, as set out in his statement at page 3 of the Application.
Having found there was a disease process in the applicant’s shoulders which has been aggravated, the question then arises as to the appropriate test to be adopted for determining whether that aggravation falls within the definition of injury as set out in ss 4 and 16 of the 1987 Act.
It is in this context that a finding in relation to the deemed date of injury is of importance. If the applicant’s submission is correct and the deemed date of injury is 20 November 2009, then the definition of injury pursuant to s 4(b)(ii) would be “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration…” By contrast, if the second respondent’s submission that the deemed date of injury is in 2018 is correct, then the current wording of s 4 (b)(ii) would apply, requiring the employment to be the main contributing factor to any aggravation.
The section which determines which employer is liable for the payment of compensation in respect of injuries and the nature of aggravations of a disease process is s 16(1) of the 1987 Act. That section, as in effect in November 2009 read:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if therefore incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who has employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
The wording of s 16 has not relevantly changed between the two competing alleged deemed dates of injury.
Mr Perry submitted the Centrelink Medical Certificates at page 263 and following of the Application demonstrated 20 November 2009 was the first date the applicant was incapacitated for employment owing to his injury by way of aggravation. He submitted if this was the case, the applicant only had to demonstrate his employment with the respondents was a substantial contributing factor to the aggravation, not the main contributing factor. The requirement for “substantive contributing factor” instead of simply “contributing factor” in the wording of s 4 as it was in 2009 arises because the former phrase is the relevant test in s 16, and plainly if something is a substantial contributing factor to an injury, it must qualify as a mere “contributing factor”, because the requirement of “substantial” is greater than that for a mere “contribution” of any kind.
Mr Barnes for the second respondent submitted the correct deemed date of injury was the date of claim for personal injury, or 31 August 2018, and if this is the case the applicant needs to demonstrate his employment with the second respondent was the main contributing factor to any aggravation.
I do not accept Mr Barnes’s submission. The applicant brings a claim not only for personal injury compensation but for weekly benefits.
The medical certificates in my view demonstrate evidence of incapacity at 20 November 2009. The fact the applicant had left the second respondent’s employ a month earlier for unrelated reasons does not preclude a finding he was incapacitated as a result of the injury some time thereafter. It is noteworthy the incapacity referred to in the 20 November 2009 certificate was that which led to the referral to Dr Ashton and the subsequent right shoulder surgery.
Having found there was an incapacity in November 2009 arising from the relevant aggravation, it follows in my view test is whether employment with the second respondent was a substantial contributing factor to the aggravation of the shoulder injuries, rather than the main contributing factor as required by the current s 4(b)(ii).
Although Dr Bosanquet was of the view there was no contribution by the employment with the second respondent, that view stands alone. Treating surgeon Dr Ashton noted the November 1996 injury was the main contributing factor to the applicant’s shoulder injuries, however, he also opined that the employment with the second respondent did contribute to the aggravation. It is, of course, trite law to say there can be more than one substantial contributing factor to any injury.
Dr Ashton’s conclusion is consistent with the applicant’s uncontested evidence as to the nature and conditions of his work with the second respondent.
Dr Ashton’s view was also supported by Dr Anderson, the first respondent’s IME, who noted the heavy work with the second respondent would likely have contributed to the shoulder issues but not to those with the neck. At page 260 of the Application, Dr Anderson also opined the 1996 injury was the main contributing factor to the applicant’s condition, but the work with the second respondent would have contributed approximately one third of the aggravation to the shoulder condition.
In my view, the preponderance of the medical evidence therefore discloses the presence of the disease process to which the applicant’s employment with the second respondent was a substantial contributing factor.
The Centrelink certificates are, in my view, important pieces of evidence. They are issued by the applicant’s long-standing treating GP and they note the effect of shoulder symptoms on the applicant’s capacity to earn income. The shoulder symptoms which led to the applicant’s incapacity are plainly those brought on by the injury in the nature of an aggravation of the underlying condition caused by the November 1996 injury. In other words, the aggravation of a disease process.
The evidence contained within the Centrelink medical certificate discloses that on 20 November 2009, the applicant was certified as unfit for work owing to an inability to obtain full function of the right shoulder compounded by pain, loss of function and disturbed sensation, with the prognosis that the symptoms are likely to persist. That in my view is plainly an incapacity for employment.
There is no suggestion the applicant was employed by any other employer apart from the second respondent in the 12 months before the onset of his incapacity on 20 November 2009. Having accepted the applicant’s heavy work with the second respondent was a contributing factor to the aggravation of the underlying disease process, I find the applicant suffered an injury in the course of his employment with the second respondent in the nature of an aggravation of that disease process, with a deemed date of injury of 20 November 2009, being the first date of certified incapacity owing to that injury.
In terms of the contribution of the applicant’s duties with the first respondent to any aggravation, I am not satisfied on the balance of probabilities that the evidence discloses the presence of such an aggravation. None of the medical experts provide a view in support of an aggravation to the claim body systems caused by the applicant’s duties with the first respondent after the injury in November 1996.
In any event, even if there was an aggravation caused by the applicant’s work with the first respondent, pursuant to s 16(1)(b), compensation will be payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, not the underlying pathology which has been aggravated. For the reasons already stated, that employer was plainly the second respondent.
For the above reasons, there will be a finding that the applicant suffered an aggravation to an underlying disease process to both shoulders in the course of his employment with the second respondent, with a deemed date of injury of 20 November 2009.

Time limits

The first respondent in the interests of EML and the second respondents raised as a defence the failure by the applicant to comply with ss 254 and 261 of the 1998 Act as the applicant made no claim on them respondent until 2018.
Section 254(2) provides the absence of notice of injury is not a bar to recovery of compensation if there are special circumstances. Those special circumstances include where the defect in giving notification of injury was occasioned by, inter alia, ignorance, mistake or other reasonable cause.
A failure to make a claim for compensation within six months of the date of injury is not a bar to recovery if it is found that the failure was occasioned by, inter alia, ignorance or mistake and the claim is in respect of an injury resulting in death or serious and permanent disablement of the worker (s 261(4)(b)).
In this matter, the worker’s statement evidence is that whilst he was aware he could make a claim in respect of a frank injury, he was not aware of any entitlement to claim in respect of an injury by way of disease of gradual process. Each of the counsel for the respondents disputed the applicant’s statement to this effect, however, there is no evidence to contradict it. I accept the applicant’s explanation and find his failure to give notice of injury was brought about by his mistaken belief he could not claim for anything other than a frank injury.
I also find the injury by way of aggravation of a disease process has resulted in serious and permanent disablement of the applicant. The medical evidence in this matter overwhelmingly demonstrates the applicant’s bilateral shoulder condition is very serious and debilitating. His right shoulder required surgical intervention and his left shoulder has been described as inoperable. Even the respondent’s own retained specialist, Dr Anderson, assessed the applicant as suffering 11% whole person impairment for the left shoulder and 10% for the right. He attributes one third of those impairments to the injury by way of aggravation with the second respondent.
I am therefore satisfied the applicant has established the requirements of ss 254(2) and 261(4)(b) of the 1998 Act, and accordingly, he is entitled to bring a claim against the first respondent in the interests of EML and the second respondent.
However, for the reasons already stated, the claim against the first respondent in the interests of EML must fail.
For the above reasons, the Commission will make an order that the applicant is entitled to bring his claim against the second respondent.

Claim for weekly compensation

The applicant brings a claim for weekly compensation for total incapacity from 2009 to 2017. He was not an existing recipient of compensation at the time of the 2012 amendments to the 1987 Act.
At the hearing, all counsel made submissions concerning the question of the applicant’s incapacity.
Although permanent impairment and incapacity are plainly different concepts, the Commission has held that in a contested matter such as the current proceedings where there are claims for both weekly and permanent impairment compensation, the preferred course of action where a Member has found a s 4 injury is to refer the matter for medical assessment of the whole person impairment before final orders are made. In 3 (Jaffarie), Roche DP made the following comments which are applicable in this matter:
“264. The result is that, contrary to Peric, where there is a claim for weekly compensation and lump sum compensation and an Arbitrator decides that, because the effect of the injury has ceased, there is no entitlement to weekly compensation, and makes an award for the respondent in respect of that part of the claim, the assessment of whole person impairment must still be referred to an AMS. Depending on the AMS’s assessment, this could give rise to a significant problem.
265. If the AMS determines that, as a result of the injury, the worker suffers from a permanent impairment, there will be a clear conflict between the AMS’s finding, which is conclusively presumed to be correct as to the degree of permanent impairment of a worker as a result of an injury (s 326(1)(a)), on the one hand, and the Arbitrator’s finding that the effect of the aggravation has ceased, on the other. Assuming that the AMS has issued a valid MAC (see Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 at [37], applied in McGowan) the worker would be entitled to have the Commission enter an award for lump sum compensation in terms consistent with the MAC. That is because a valid MAC that is conclusively presumed to be correct under s 326(1) ‘trumps any inconsistent findings by an Arbitrator’ (Haroun at [22]).
266. Once the award for lump sum compensation is entered there will then be two inconsistent awards: the first, by an Arbitrator, that, so far as the claim for weekly compensation is concerned, the effect of the injury has ceased and, the second, based on the AMS’s assessment, that, so far as the claim for lump sum compensation is concerned, the effect of the injury is continuing. Thus, the result offends both the principle that the law should avoid conflicting judgments (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 603–4; Halsbury’s Laws of Australia (LexisNexis) at [195-2450]) and the public interest in the finality of litigation. As explained by the High Court ‘[a] central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined, circumstances’ (D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, Gleeson CJ, Gummow, Hayne and Heydon JJ at [34]).
267. To say that such an outcome is undesirable would be a serious understatement. The conflict can be addressed, but not solved, by the worker asking that the Arbitrator’s decision be reconsidered under s 350(3) of the 1998 Act. Thus, there will be further delay and expense while there is a second hearing to determine if the AMS’s assessment makes any difference to the Arbitrator’s finding on weekly compensation and medical expenses. This will undermine two of the Commission’s core statutory objectives, namely, the provision of a fair and cost effective system for the resolution of disputes under the 1998 Act and the 1987 Act and the provision of a timely service ensuring that workers’ entitlements are paid promptly (s 367(1)(a) and (c) of the 1998 Act).
268. I should add, though it should be obvious, that the fact that an AMS finds that there is a permanent impairment in circumstances where the Arbitrator has found that the effect of the injury has ceased will not automatically mean that the worker is entitled to a continuing award of weekly compensation or continuing medical expenses. There may well be cases where a finding of a modest whole person impairment does not result in an economic incapacity. Moreover, the recovery of the medical expenses is now restricted by s 59A. Naturally, each case will depend on its own facts.
269. The uncertainty and delay that will result from the above can be reduced if, when there is a claim for weekly compensation and lump sum compensation, and the Arbitrator finds that the worker has suffered a s 4 injury, the matter is referred to an AMS for assessment of the whole person impairment that has resulted from that injury before the Arbitrator makes final orders. That is far from ideal, because it delays the final resolution of the claim, but it is better than forcing a worker to make a reconsideration application in the event that the MAC is inconsistent with the Arbitrator’s findings.”
Consistent with the Deputy President’s comments in Jaffarie, I consider the appropriate course of action in this matter is to remit the claim for permanent impairment compensation to the President for referral to a Medical Assessor on terms consistent with my findings, and to stand over the claim for weekly compensation to a date after the issuing of a Medical Certificate.

Claim for medical and treatment expenses

The applicant makes a claim for medical and treatment expenses pursuant to s 60 of the 1987 Act.
Given the permanent impairment claim is to be referred for medical assessment, there remains, as with the claim for weekly compensation, a risk of inconsistent decisions being issued by the Commission. This is particularly so where a portion of the applicant’s claim for medical expenses includes the right shoulder surgery carried out by Dr Ashton in 2011. In order to avoid such a risk, the appropriate course of action is to defer making final orders until after any Medical Assessment Certificate has been issued.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on pages 1 and 2 of the Certificate of Determination.

[2023] NSWPIC 67

21 February 2023