Fletcher v GrainCorp Operations Ltd
[2023] NSWPIC 551
•19 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |||||||||||||||||||||||||||||||||||||||
| CITATION: | Fletcher v GrainCorp Operations Ltd & Ors [2023] NSWPIC 551 | ||||||||||||||||||||||||||||||||||||||
| APPLICANT: | David Fletcher | ||||||||||||||||||||||||||||||||||||||
| FIRST RESPONDENT: | Grain Corp Operations Limited | ||||||||||||||||||||||||||||||||||||||
SECOND RESPONDENT: | HealthShare NSW | ||||||||||||||||||||||||||||||||||||||
| MEMBER: | Cameron Burge | ||||||||||||||||||||||||||||||||||||||
| DATE OF DECISION: | 19 October 2023 | ||||||||||||||||||||||||||||||||||||||
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits, lump sum compensation and medical expenses; findings on primary liability were made in previous decision of the Commission in these proceedings; applicant has been medically assessed; current dispute concerns weekly benefits for a period which traverses the commencement of the 2012 amendments, and for payment of medical expenses; Held – respondents to pay section 66 compensation in accordance with the findings of the Medical Assessor; the applicant has suffered incapacity for employment as a result of his injuries; liability for that incapacity rests with the second respondent, given the applicant was able to work in heavy, repetitive and manual employment from his initial injury in 1996 until his second deemed date of injury in 2009; second respondent ordered to pay the applicant weekly payments from 10 October 2009 to 25 December 2017; the respondents are to pay the applicant’s section 60 expenses incurred as a result of his injuries, with the second respondent to pay the costs of and incidental to the shoulder surgery carried out by Dr Ashton. | ||||||||||||||||||||||||||||||||||||||
DETERMINATIONS MADE: | In addition to the Orders made on 21 February 2023, the Commission determines: 1. The first respondent as self-insurer is to pay the applicant the sum of $13,500 pursuant to 2. The second respondent is to pay the applicant $33,000 in respect of a 21% whole person impairment to bilateral upper extremities (shoulders) with a deemed date of injury of 3. The first respondent is to pay the applicant’s s 60 expenses incurred as a result of the injury to his neck and both shoulders suffered on 14 November 1996. 4. The second respondent is to pay the applicant’s s 60 expenses incurred as a result of the injury to his left and right upper extremities (shoulders) with a deemed date of injury of 5. Award for the first respondent on the claim for weekly compensation. 6. The second respondent is to pay the applicant weekly compensation as follows:
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STATEMENT OF REASONS
BACKGROUND
This matter was previously listed for hearing over two days on 29 August 2022 and 31 October 2022.
On 21 February 2023, the Personal Injury Commission (Commission) issued a Certificate of Determination in these proceedings. Relevantly, the findings in that Certificate of Determination were that the applicant suffered injury to his neck and both shoulders in the course of his employment with the first respondent on 14 November 1996, and that he suffered injuries by way of aggravation to his left and right shoulders with the second respondent with a deemed date of injury of 20 November 2009. The permanent impairment claims with respect to those injuries were referred for medical assessment.
The Commission then issued an Amended Medical Assessment Certificate of Medical Assessor Kuru on 12 July 2023. The Medical Assessor found the applicant suffers a 4% whole person impairment in relation to the 1996 injury and a 21% whole person impairment with respect to the deemed date of injury in 2009.
Consistent with the previous approach of the parties to this matter, they could not reach agreement on any substantive issue, thereby necessitating a further hearing on 16 August 2023. On that occasion, the applicant’s claims for weekly benefits and medical expenses were in issue.
The applicant’s period of claimed weekly benefits is from 10 November 2009 to 25 December 2017, thereby traversing the commencement of the 2012 amendments.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the applicant’s entitlement to weekly compensation, and
(b) the applicant’s entitlement to s 60 expenses.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended yet another hearing in this matter on 4 September 2023. On that occasion, the applicant was again represented by Mr Perry of counsel. The first respondent as self-insurer was represented by Mr Grant of counsel, the first respondent in the interests of EML was represented by Mr Baran of counsel and the second respondent was represented by Mr Barnes of counsel.
At the outset of the hearing, the first respondent in the interests of EML was excused from the proceedings, as orders in its favour on the question of liability had been made in the Commission’s previous Certificate of Determination.
The parties noted the Commission would need to make orders in relation to the applicant’s permanent impairment claim. The relevant orders pertaining to the findings of the medical Assessor are:
(a) the first respondent as self-insurer is to pay the applicant permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $13,500 for loss of use of the left and right arms at or above the elbows and for permanent impairment to the neck for the injury suffered on
14 November 1996;(b) the second respondent is to pay the applicant permanent impairment compensation in the sum of $23,000 in respect of a 21% whole person impairment for injuries to the left and right extremities (shoulders) with a deemed date of injury of 29 November 2009, and
(c) award for the first respondent in the interests of EML.
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);
(b) first respondent’s Reply lodged in its interests as self-insurer;
(c) first respondent’s Reply lodged in the interests of EML reply;
(d) second respondent’s Reply;
(e) Amended Medical Assessment Certificate of Medical Assessor Kuru dated
12 July 2023, and(f) second respondent’s wages schedule.
The Commission also took into account the submissions made by counsel in relation to the weekly payments and medical expenses claims at the previous hearings together with those on the most recent hearing date.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The applicant’s weekly payments claim
The applicant’s claim for weekly benefits traverses the implementation of the 2012 amendments. As such, there are differences in the factors which are to be taken into account in those two periods.
Regardless of the period claimed, an injured worker carries the onus of proving that his or her economic loss results from incapacity arising from his or her injury, rather than from general economic conditions: Mills, C.P. (1979) Workers’ Compensation (New South Wales) Second Edition, Sydney, Butterworth’s at P 190 (Mills).
“Incapacity” is not defined in the Workers’ Compensation Legislation. An assessment must be made as to what work would have been available to the worker had he or she remained uninjured, and the worker’s ability to earn in the open labour market as distinct from their actual earnings. That consideration is the relevant one for claims for incapacity prior to the 2012 amendments coming into effect. This matter is partially such a case. For the pre-2012 amendments component of the applicant’s case, it is not simply any incapacity for his pre-injury work which must be taken into consideration, but also of work open to him on the accessible labour market taking into account his qualifications, skills and experience.
A worker is totally incapacitated when, as a result of his or her injury, their labour is unsalable on the open labour market. A worker is partially incapacitated when, as a result of his or her injury, their labour is saleable for less than it was before they were injured.
A statement of the approach to determining incapacity in a pre-2012 context is found in Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155 where Campbell JA said:
“The deputy president identified the proper question to be asked, in deciding whether there is an incapacity, by citing the following from CP Mills, Workers’ Compensation (NSW), Second Edition 1979 Butterworths at 285:
‘The question is whether the injury has left the worker in such a position that in the open labour market, his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Limited) (1948) 76 CLR 431 per Starke J), and it is not limited to the effect on his capacity for his former work (per Dixon J). In Ball v Hunt [1912] AC 496, Lord Loreburn had said that there is capacity when a man has a physical defect which makes his labour unsalable in any market reasonably accessible to him, and there is partial incapacity when such a defect makes his labour saleable for less than it would otherwise fetch: see Commissioner for Railways v Agalianos (1955) 92 CLR 390 per Dixon CJ.’
He referred to the statement of Hutley JA in Alexander v Ashfield Municipal Council (Court of Appeal, 27 October 1982, unreported) at 2, that:
‘Capacity is diminished, even though in selected instances the worker can earn as much as he did before, if there are fields from which he is excluded, by reason of the injury, in which he laboured at the time of the injury.’”
Incapacity is not determined by whether the worker can perform his or her pre-injury duties: see Metropolitan Cole Co Limited v Duffy (1966) 67 SR (NSW) 163 at 168. The capacity is not incapacity for pre-injury employment, but rather, in the pre-2012 context, incapacity for work on the open labour market reasonably accessible to the relevant worker.
For the period post-dating the 2012 amendments to the 1987 Act, the relevant consideration is the degree of the worker’s incapacity for employment having regard to their injury. One does not take into account factors such as the nature of the labour market within which the injured worker is operating.
Incapacity and the degree thereof is itself a question of fact and, on the determination of a fact, opinion evidence is admissible if it is expert, such as that contained within medical reports and vocational assessment reports. Such a question of fact is to be determined by the trier of fact on the balance of probabilities, taking into account all evidence, lay and expert and reaching its own conclusion to the requisite standard rather than simply defer to the expert evidence tendered.
As has been long established, incapacity for work and permanent impairment are two different matters. It does not follow that an assessment of no permanent impairment means a worker has no incapacity for work. Likewise, a finding of permanent impairment does not automatically support a finding of incapacity for work, though it will be an important factor (see for example, Ric Developments t/as Lane Cove Poolmart v Muir (2008) NSWCA 155).
In making determinations as to whether there is any incapacity, and if so whether it is total or partial, Commission Members are entitled to draw on their experience as Members of a specialist Tribunal: see Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385.
For the applicant, Mr Perry submitted the Commission should accept the applicant as a witness of truth and find favour with the views of the respondent’s own independent medical examiner (IME) Dr Anderson, who found the applicant a worker who, were he able to do so, would have taken on employment to his full capacity. In the previous reasons issued in this matter, I accepted the applicant as a witness of truth, and I continue to do so.
For the first respondent, Mr Grant noted that although whole person impairment and incapacity are separate concepts, Medical Assessor Kuru found minimal whole person impairment arising from injury suffered by the applicant whilst working for the first respondent, which he submitted is consistent with the applicant being able to work from the date of injury in November 1996 with the first respondent until his employment was terminated in 2004 for reasons other than his injury.
I find favour with that submission, noting the applicant’s own evidence that he persisted with his employment until the first respondent terminated it for reasons unrelated to any injury on 18 December 2004.
There was no issue the applicant then commenced employment with the second respondent on 30 December 2004, where he remained until November 2009 when his employment was terminated when he lost his licence as a result of a PCA offence.
I accept Mr Grant’s submission that the evidence discloses the applicant continued to carry out heavy and repetitive work until his employment was terminated for non-injurious reasons with the first respondent in December 2004. As Mr Grant noted, the first time the applicant was certified as suffering any incapacity by his general practitioner was on 15 January 2009 during the course of his employment with the second respondent, work which was also heavy and repetitive in nature, as set out in the prior Reasons for Decision in this matter.
In my view, adopting a common sense evaluation of the causal chain, it is difficult to reconcile an injury in 1996 being the cause of incapacity which first emerged in 2009 in circumstances where the applicant had maintained heavy employment across the years and where there has also been further injury to his shoulders suffered in the course of employment with the second respondent, injuries which have been found to be objectively more serious than those suffered whilst in the employ of the first respondent.
There is no issue the applicant lost his job with the second respondent in November 2009 because he lost his licence. That circumstance does not, however, obviate the potential presence of incapacity arising from injury. It is, however, a relevant factor to take into account when determining the applicant’s incapacity from the time he ceased employment with the second respondent.
In a report dated 28 June 2018, Dr Bosanquet, the applicant’s IME, found he had some residual capacity provided he avoided working overhead and lifting more than 5kg. However, I note the applicant as a man of limited education whose experience in the workforce has always been in the context of carrying out heavy and manual work. A Centrelink medical certificate dated 20 November 2009 described the applicant as being capable of carrying out light clerical duties if available. However, adopting the test appropriate for pre-2012 amendment evaluation of incapacity, it is relevant to note there is nothing to suggest the applicant had the requisite skills to carry out such clerical work given his education, training and experience.
The applicant’s medical certificates suggest he had some capacity for employment from November 2009 to 11 April 2011, after which the applicant was certified totally unfit for employment. Those certificates are persuasive in the circumstances of a matter such as this, because they are contemporaneous record of the applicant’s condition for a period in issue which has long since expired. I also note the applicant underwent right shoulder acromioplasty and cuff repair on 25 October 2011 against a diagnosis of full thickness rotator cuff tear diagnosed by Dr Ashton in 2009.
The applicant gave evidence as to the nature and conditions of his employment with the second respondent, and there is no issue those duties were heavy. Of the three specialists who have provided reports in this matter, the applicant’s IME Dr Bosanquet is of the view there is no aggravation caused by post-1996 injury work; respondent’s IME Dr Anderson ascribes one third of the applicant’s shoulder impairments to the second respondent and treating surgeon Dr Ashton also refers to a disease process potentially aggravated by the applicant’s 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.”
As a treating surgeon, Dr Ashton’s views are in my opinion to be given significant weight unless it can be shown there is some demonstrable error in this history taken or methodology adopted by him. In my view, no such error has been demonstrated in this matter.
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.”
In terms of incapacity, 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.
In determining attributability for any incapacity, one must consider the two injuries found to have taken place. Although the medical evidence suggests the 1996 injury was the genesis of the applicant’s pathology and problems, when determining what gave rise to the incapacity, it is in my view noteworthy the applicant was able to continue working until the injury by way of aggravation suffered with the second respondent took effect.
As to the incapacity suffered, I accept Mr Perry’s submission that from the time of the applicant’s referral to Dr Ashton on 25 January 2010 up to and beyond his surgery on
25 October 2011, the applicant had no capacity for employment for the balance of the period of the claim. That submission is, in my view, persuasive. The applicant is a worker who
Dr Anderson, IME for the respondent, described as someone who would avail himself of any employment available if he was fit. Moreover, Dr Ashton saw the applicant as late as 2018, outside the five year period of s 40 entitlements, and at that point in time it was clear both of the applicant’s shoulders continued to trouble him greatly.Mr Grant submitted that from June 2012, the applicant was certified as fit for suitable duties, eight hours per day, four days per week, and that given the applicant’s history of previously driving machinery, he had residual capacity for such employment.
Doing the best I can, given the effluxion of time and taking into consideration the medical and lay evidence available, I am satisfied on the balance of probabilities the applicant suffered incapacity for employment from 20 November 2009 until the commencement of the operation of the 2012 amendments.
In so finding, I am of the view the applicant suffered partial incapacity from
10 November 2009 to 24 October 2011 during which period he was able to work up to nine hours per week. It is relevant that while the applicant undoubtedly had injuries in that period which caused some incapacity, he lost his job for non-injurious reasons. I find that from 25 October 2011 to 25 December 2017, being the balance of the period claimed, the applicant has suffered total incapacity for employment.Although Mr Grant noted the applicant as having been certified for suitable duties after his operation, having regard to the totality of the medical evidence, I am satisfied the applicant has in fact been totally incapacitated since his surgery in October 2011. In making this finding, I have had particular regard to the more recent reports of treating surgeon Dr Ashton. In a report dated 2 August 2018, Dr Ashton reported to the applicant’s GP:
“I did do a right shoulder open acromioplasty/cuff repair some years ago which certainly functions much better than the left though is not perfect. I note he is also a cigarette smoker which is not ideal from the point of view of any tendon healing if surgery were to be performed again.
The left shoulder has soft tissue crepitus on range of motion testing and is decreased in terms of strength particularly forward elevation. I am able to passively forward elevate to 160 degrees though actively he struggles to get much beyond 90. Rotation with the arm at the side and internal and external movements is less affected. The AC joint is non symptomatic. The long head of biceps is tender to deep palpation.
Range of motion of the cervical spine is decreased though there is no referred pain into either arm on provocative stress testing…
He also mentioned a total and permanent incapacity certificate which I suspect would need to be done by someone who is work compensation accredited who can give a total body capacity percentile calculation. I have advised him to discuss this further with his solicitors regarding access to superannuation funds.”
In a report dated 13 September 2018 in which he commented on the findings of an MRI of the left shoulder, Dr Ashton said:
“MRI shows a large retracted supraspinatus tendon tear to the glenoid margin with significant muscle atrophy. The infraspinatus and subscapularis tendons remained intact with tendinosis. The long head of biceps had thinning and a possible partial tear. There was no osteoarthritic change at the glenohumeral joint though there was some AC joint degenerate change.
MRI scans confirm that attempted repair of the supraspinatus tendon would not be successful as the muscle is too atrophic and the tendon tears too large. I have advised him on ongoing range of motion exercises and activity modification along with hydrotherapy when it is warm enough. In the longer term if he develops cuff arthropathy, reverse articulating shoulder replacement would be possible. Arthroscopic debridement and biceps tenotomy whilst it would be possible would probably not provide great pain relief.”
Those findings of Dr Ashton are, in my opinion, consistent with the applicant being totally incapacitated. I also note Dr Anderson, IME for the first respondent, opined as at 2021 the applicant was unfit for any employment “within his skill base”.
On balance, I am satisfied the preponderance of the medical evidence discloses the applicant was and remained totally incapacitated from the date of his surgery until the period of his claim expired on 25 December 2017.
I am satisfied that the applicant’s wages schedules accurately reflects his pre-injury average weekly earnings (PIAWE), noting it references payslips and tax returns.
Doing the best I can, and having regard to the finding that the second respondent is liable for the incapacity at issue, I find the second respondent liable to pay the applicant weekly compensation as follows:
| PERIOD | ACTUAL EARNINGS/ ABILILTY TO EARN | PIAWE | DIFFERENCE | AWARD |
| 10 October 2009 - 31 March 2010 | $0.00 | $385.71 | $385.71 | $150.00 |
| 1 April 2010 - 30 September 2010 | $0.00 | $393.06 | $393.06 | $150.00 |
| l October 2010 - 31 March 2011 | $0.00 | $398.32 | $398.32 | $150.00 |
| l April 2011 - 30 September 2011 | $0.00 | $406.37 | $406.37 | $406.37 |
| l October 2011 - 31 March 2012 | $0.00 | $413.37 | $413.37 | $413.37 |
| 1 April 2012- 30 September 2012 | $0.00 | $421.08 | $421.08 | $421.08 |
| 1 October 2012 - 31 December 2012 | $0.00 | $427.91 | $427.91 | $427.91 |
| 1 January 2013 - 31 March 2013 | $0.00 | $427.91 | $427.91 | $342.32 |
| 1 April 2013 - 30 September 2013 | $0.00 | $436.00 | $436.00 | $348.80 |
| l October 2013 - 31 March 2014 | $0.00 | $439.00 | $439.00 | $351.20 |
| l April 2014 - 30 September 2014 | $0.00 | $447.00 | $447.00 | $357.60 |
| 1 October 2014 - 31 March 2015 | $0.00 | $451.00 | $451.00 | $360.80 |
| 1 April 2015 - 30 September 2015 | $0,00 | $454.00 | $454.00 | $363.20 |
| l October 2015 - 31 March 2016 | $0.00 | $460.00 | $460.00 | $368.00 |
| 1 April 2016- 30 September 2016 | $0.00 | $463.00 | $463.00 | $370.40 |
| 1 October 2016 - 31 March 2017 | $0.00 | $465.00 | $465.00 | $372.00 |
| 1 April 2017 - 30 September 2017 | $0.00 | $472.00 | $472.08 | $377.60 |
| 1 October 2017 - 25 December 2017 | $0.00 | $475.00 | $475.00 | $380.00 |
Claim for medical expenses
There was no serious challenge to the reasonable necessity of the treatment provided to the applicant, in the event of findings of injury on his favour. In particular, it was not suggested the surgery was unnecessary.
This being so and having regard to the findings in relation to the cause of the applicant’s condition, it is appropriate to order each of the first respondent as self-insurer and the second respondent pay the reasonably necessary medical expenses flowing from their respective injuries. Given, however, the trajectory of the applicant’s shoulder injuries, I am of the view the second respondent should pay for the costs of and incidental to the right shoulder surgery carried out by Dr Ashton. Such a finding is, in my view, consistent with the findings of the Medical Assessor concerning the impairment suffered by the applicant as a result of the respective injuries, and with the applicant’s own evidence together with the contemporaneous treatment records in evidence.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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