Fletcher v Northern Beaches Council
[2025] NSWPIC 7
•9 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Fletcher v Northern Beaches Council [2025] NSWPIC 7 |
| APPLICANT: | Ronald Fletcher |
| RESPONDENT: | Northern Beaches Council |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 9 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; whether the applicant sustained injury to the bilateral shoulders and lumbar spine and psychological injury in the course of employment as a painter; whether personal injury or disease pursuant to section 4; respondent asserted that the worker suffered multiple separate frank injuries on different dates; worker asserted that he suffered a single injury with a deemed date; issues with quality of medical evidence; worker suffered a symptomatic aggravation of an underlying disease in the course of his employment to the bilateral shoulders; insufficient evidence relating to lumbar spine injury; Held – bilateral shoulder injury deemed to have occurred on date claim was made; matter referred to a Medical Assessor to assess bilateral shoulder injuries. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained an injury to his lumbar spine on 11 March 2019. 2. The applicant sustained injuries to his bilateral upper limbs (shoulders) arising out of or in the course of his employment on 26 February 2024 (deemed/disease) and employment was the main contributing factor to this injury. 3. The respondent to pay reasonably necessary medical expenses as claimed in respect of treatment for the lumbar spine and bilateral upper limbs. The Commission orders: 4. Amend the Application to Resolve the Dispute to remove reference to lumbar spine injury sustained on 15 April 2013. 5. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: (a) Date of injury: 26 February 2024 – disease. (b) Body system/part: (i) left upper limb (shoulder), and (ii) right upper limb (shoulder). 6. That the Medical Assessor is to be provided with the following; (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents filed by the applicant and respondent and dated 5 and 6 November 2024. 7. Liberty to apply with respect to any claim relating to psychological injury. |
STATEMENT OF REASONS
BACKGROUND
Ronald Fletcher, (the applicant) was employed as a painter for almost two decades by the respondent (Northern Beaches Council), ceasing employment on 26 February 2024.
On 5 August 2024, he claimed lump sum compensation after being assessed as having a 26% whole person impairment (WPI) arising out of injuries sustained in the course of his employment relevantly:
(a) 7% WPI of the lumbar spine;
(b) 13% WPI of the left shoulder, and
(c) 8% WPI of the right shoulder.
The above impairments are claimed to have arisen as a result of
(a) the nature and conditions of employment;
(b) “frank” incidents on 15 April 2013, 11 March 2019, 21 July 2020, 20 December 2020, 10 March 2021 and 12 February 2024;
(c) injury by way of aggravation, acceleration, exacerbation or deterioration of disease, and
(d) left shoulder injury as consequential to the right shoulder injury due to overuse.
A concurrent claim for psychological injury (adjustment disorder) arising out of bullying was also made for which treatment expenses are sought.
Following assessment, the insurer declined liability with reference to the Workers Compensation Act (1987) (the 1987 Act) and Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) maintaining:
(a) right shoulder injury claimed on 21 July 2020[1] (overhead movements resulting in a diagnosis of sub acromial bursitis and biceps tenosynovitis) resolved following a period of treatment and altered duties with a pre-injury duties certificate issued on 21 August 2020;
(b) bilateral shoulder injuries claimed on 20 December 2020[2] and 10 March 2021[3] and specifically in circumstances where the right shoulder injury caused dependence (and subsequent strain) on the left shoulder had resolved;
(c) upper limb injuries were not the result of nature and conditions or ‘disease’ rather arose from separate frank injuries and so impairment cannot be combined, and
(d) the lumbar spine injury on 11 March 2019 was a frank injury resulting in pre-injury certification four days later on 15 March 2019. The evidence does not establish the nature and conditions of employment were the main contributing factor to any disease type process. The injury could not be aggregated. Injury of 2013 was outside of the insurer’s period of risk.
[1] Claim Number NBE 2467.
[2] Claim Number NBE 2593.
[3] Claim Number NBE 2632.
As regards the claim for psychological injury (adjustment disorder), the insurer denied liability maintaining there was insufficient evidence of workplace bullying or that any adjustment disorder was related to employment.
Given the dispute, proceedings were commenced in the Personal Injury Commission (the Commission) with respect to the lump sum claim and also treatment expenses relating to the orthopaedic and psychological injuries. The matter underwent the usual case management pathway and following conciliation impasse proceeded to timetabled written submissions.
Mr Moffet of counsel instructed by Mr Covic represented the applicant. Mr Combe of counsel instructed by Ms Beattie represented the respondent.
The following documents were in evidence:
(a) Application to Resolve a Dispute and annexures (ARD);
(b) Reply and annexures, and
(c) Application to Admit Late Documents (AALD) filed by the respondent on 5 November 2024 and by the applicant on 6 November 2024.
In addition I also considered the written submissions of counsel.
ISSUES FOR DETERMINATION
The main and disputed claim made by the applicant is for lump sum compensation in respect of permanent impairment arising from injury to the lumbar spine and bilateral upper limbs (shoulders).
The ARD pleads a single “injury”, namely one to the back and bilateral shoulders resulting from the “nature and conditions (of employment to) 26 February 2024 (deemed)” due to repetitive manual work in the course of his employment with the respondent (disease). The pleaded deemed date is the last date of employment.
The gravamen of the respondent’s submissions is that the applicant suffered “frank injuries” as pleaded in the ARD and so impairments cannot be “aggregated” for the purposes of assessing entitlement to permanent impairment compensation and this essentially is the epicentre of the lump sum dispute requiring determination.
In assessing ‘injury’ I must assess the nature of any injury, that is whether frank, disease injury or consequential condition as such findings ultimately form part of the referral to a Medical Assessor.
I was also to assess whether the applicant has suffered a psychological injury and finally whether the treatment expenses claimed are reasonably necessary. Submissions failed to address the issue of injury and causation with any real substance with the respondent not dealing with it at all which I found surprising given the allegations made about its conduct toward the applicant. This is necessary as a determination needs to be made on whether the psychological injury is primary or secondary, particularly as I found the medical evidence to be unclear on this point. In the interests of procedural fairness and to avoid further delay, I grant liberty to apply for further conference if this matter is pressed.
EVIDENCE
In his statement dated 24 September 2024,[4] the applicant confirmed:
(a) he is currently 71-years-old, ceased work on 26 February 2024 after almost two decades as a painter;
(b) work was physically demanding with constant and repetitive activity of both arms above shoulder level. He carried heavy cans of paint and chemicals and engaged in much bending, lifting and twisting. He painted houses, buildings and apartments and was also responsible for the maintenance of public areas which included painting benches, tables, fences, street furniture, jetties and kindergartens which involved more bending and twisting to reach lower areas, precipitating symptoms in the lower back and shoulders;
(c) as regards the upper limbs, the right shoulder was symptomatic first as he is right hand dominant. When symptoms in the right shoulder were ‘bad’ he performed tasks with his left shoulder/arm which then resulted in symptoms in the left shoulder… “then when my left shoulder went, I started using my right arm again as that was better than the left. So it was a bit of a cycle”;[5]
(d) on 12 February 2024, in the course of painting picnic tables at Bilarong Reserve he needed to kneel to the ground and lean over the bench seats to reach under the table which resulted in lower back and left shoulder pain. He ceased working on 26 February 2024 predominantly due to symptoms in the left shoulder;[6]
(e) a history of treatment under the care of Dr Forfa is described including but not limited to investigations, ultrasound guided injections and referrals to physiotherapy. Dr Lim assumed management on 11 April 2024 as “Dr Forfa wasn’t good with the paperwork and didn’t seem too interested in a workers compensation claim and the admin side of things”.[7] Surgery has been recommended for the left shoulder although there is a wish to avoid this;
(f) psychological symptoms occurred because of bullying and targeting by the Work Health and Safety (WH&S) managers. He felt unsupported during the workers compensation process and became upset when the advice of his general practitioner and physiotherapist was questioned;
(g) “Severe pain” occurs whenever the left arm is used resulting in clicking and disrupted sleep. Similar pain is experienced in the right arm. The back pain is described as constant and severe preventing walking for more than 50 metres without rest with sitting and standing impacted. The symptoms disrupt activities of daily living and personal relationships on account of physical limitations.
[4] Folios 1-5 of the ARD.
[5] paragraph 18 – folio 2 of the ARD.
[6] paragraph 19 – folio 2 of the ARD.
[7] Paragraph 29 – folio 3 of the ARD.
Dr Endry Walder, was qualified by the applicant and reported on 1 August 2024.[8] The history of injury is consistent with the applicant’s statement. He records treatment and investigations relating to the lower back and bilateral shoulders specifically over the “last three or four years. There certainly was radiology at the lumbar spine in the second half of 2023, highlighting multi-level disc degenerative and facet joint pathology”.[9]
[8] Folios 36-45 of the ARD.
[9] Folio 42 of the ARD.
Specifically, he concluded (unedited):
“I do believe that your client’s employment is a substantial contributing factor to his left and right shoulder related symptoms, his ongoing lower back pain.
I do believe that the nature and conditions of his many years of work for Northern Beaches Council is the underlying condition which has led to degenerative changes along the lumbar spine and at the shoulder girdles, acknowledging the reported acute injury to the right shoulder in July 2020, the subsequent ongoing pain at both shoulders.
Given that injury to his left shoulder has now been accepted, I have some difficulty understanding as to why such an acceptance has not been extended to the right shoulder where he had work related injury in the past and is now suffering from aggravation on account of rekindling of symptoms, having to rely primarily on the right upper limb since the particular left shoulder injury earlier this year.
I consider the back injury of 12.2.2024 to be, indeed, aggravation of the underlying, pre-existing spondylitic changes. It appears that he may have been suffering with neural claudication on account of the spinal canal stenosis.”[10]
[10] Folio 43 of the ARD.
Dr Khan, consultant psychiatrist was qualified by the applicant and reported on 30 August 2024.[11] A history in the deterioration in mental state resulted when the respondent’s WH&S representative actively interfered with treatment including second guessing the recommendations of his general practitioner and physiotherapist. As a result the applicant felt unsupported. The past history of bullying (2019) following a back complaint was recorded along with personal stressors which did not impact capacity.
[11] Folio 46 of the ARD.
Dr Khan diagnosed an adjustment disorder with mixed anxiety and depressed mood and pre-existing conditions of major depressive disorder, tobacco use disorder (in early remission), alcohol use disorder and cannabis use disorder (in long term remission).[12]
[12] Folio 50 of the ARD.
Dr Khan concluded
“Mr Fletcher has suffered a secondary psychiatric/psychological injury and a primary psychiatric/psychological injury. His secondary injury developed as a direct result of the impact of his workplace physical injuries and associated chronic pain on his day to day functioning. His primary injury has developed as a direct result of the maltreatment he endured from the work health and safety manager while trying to work following his workplace psychological injuries…
His disease condition is one of a gradual onset with his work being the main contributing factor to the contraction of the disease. Mr Fletcher first started to develop symptoms of depression and anxiety in the context of struggling with his workplace physical injuries and associated chronic pain, which affected his day to day functioning. His mental state had deteriorated further in the context of feeling bullied and harassed by the work health and safety manager who failed to provide support or his medical treatment and reportedly tried to intervene in his access to this medical treatment for his physical injuries”.[13]
[13] Folio 51 of the ARD.
Contemporaneous evidence
Dr Forfa reported to the insurer on 27 August 2020 regarding injury sustained on 21 July 2020. He diagnosed right shoulder sub acromial bursitis and biceps tenosynovitis due to repetitive above shoulder/head movements with right arm, noticed first on 21 July 2020. The employment duties as a painter were considered to be the main contributing factor with no activities outside of the workplace contributing to the problem and no pre-existing relating problems.[14]
[14] Folio 58 of the ARD.
In a report dated 10 January 2022 “ongoing pain” in both shoulders were recorded affecting “him after work and at night”.[15]
[15] Folio 62 of the ARD.
Alexander Wu, physiotherapist in his report dated 15 February 2024[16] confirmed the applicant aggravated his left shoulder by lifting and reaching at work and “this has been a gradual progression of pain and dysfunction of the shoulder”.
[16] Folio 68 of the ARD.
X-ray dated 21 September 2023,[17] CT scan dated 17 November 2023[18] and MRI of the lumbar spine dated 17 May 2024 all identify osteophyte complexes at the various levels examined along with multilevel facet joint arthrosis.
[17] Folio 99 of the ARD.
[18] Folio 100 of the ARD.
There are multiple Certificates of capacity in evidence signed by Dr Forfa which I consider provide the most reliable history of complaints given the lapse of time, relevantly:
Date
Diagnosis
Mechanism of injury
6 May 2019[19]
21 May 2019[20]
28 May 2019[21]Reactive anxiety and depression with workplace difficulties
Back injury
21 August 2020[22]
19 February 2021[23]
19 March 2021[24]
18 June 2021[25]
16 July 2021[26]
8 October 2021[27]Right shoulder sub acromial bursitis and biceps tenosynovitis
Repetitive above shoulder/head movements with right arm – pain during over shoulder activities, pain worse at night – intermittent pain during work especially when performing duties with arm above his head
26 March 2021[28]
18 June 2021[29]
10 September 2021[30]
12 February 2024[31]Left shoulder injury/rotator cuff injury
Repetitive above shoulder/head movements with left arm – left shoulder pain with above shoulder activity and in certain positions, pain worse at night esp. after heavy workload.
11 April 2024[32] (Initial Certificate by Dr Eric Lim)
lower back aggravation, left supraspinatus tear and right shoulder aggravation.
Bilateral shoulder and lower back injuries due to repetitively lifting and extending arm during work
30 April 2024[33] (issued by Dr Salma Hanif)
Adjustment disorder
Bullying from his WHS manager at work following his back and bilateral shoulder injury.
[19] Folio 138 of the ARD.
[20] Folio 141 of the ARD.
[21] Folio 144 of the ARD.
[22] Folio 147 of the ARD.
[23] Folio 151 of the ARD.
[24] Folio 158 of the ARD.
[25] Folio 180 of the ARD.
[26] Folio 187 of the ARD.
[27] Folio 260 of the ARD.
[28] Folio 152 of the ARD.
[29] Folio 176 of the ARD.
[30] Folio 255 of the ARD.
[31] Folio 263 of the ARD.
[32] Folio 266 of the ARD.
[33] Folio 271 of the ARD.
Clinical notes of Dr Forfa (a total of 147 folios) were produced documenting consultations and examination findings between 26 February 2002 and 6 March 2024.[34]
[34] Folios 332-412 of the ARD and 54-121 of the Reply.
As regards the back complaint, the injury of 15 April 2013 whilst moving furniture is clearly documented with pain spreading in the right lower back and hip areas.[35] The applicant was declared fit to return to pre-injury duties on 1 May 2013 with no repeated lifting. A further back injury is recorded on 11 March 2019 with the mechanism of injury noted “sudden pain after standing straight from squat position”.[36] The injury was noted to have recovered as at 21 March 2019 but an entry records the applicant complained of workplace bullying as a result of the injury,[37] at which point various certificates of capacity were issued with a diagnosis of reactive depression/anxiety. On 8 November 2023, the applicant presented with lower back pain without radiation with the entry recording “put on 12kgs last 4.5 yrs”.[38] No reference is made to any workplace injury at that time. No presentations relating to back complaint are recorded between 2019 and November 2023 despite multiple presentations for other work related and other illnesses.
[35] Folio 65 of the Reply.
[36] Folio 79 of the Reply.
[37] Folio 80 of the Reply.
[38] Folio 101 of the Reply.
As regards bilateral shoulder complaints, the sequential clinical presentations report the applicant continued to experience both right and left shoulder pain after heavy workloads particularly where the work involved over shoulder activities.[39] On 16 February 2024, it is recorded the applicant had “left shoulder pain for 1/52, triggered by most probably repetitive lifting and reaching at work”.[40] The three subsequent consultations on 16, 21 and 26 February 2024 relate only to symptoms in the left shoulder (I emphasise this as the applicant claims to have developed back symptoms on 16 February 2024 but there is no contemporaneous complaint recorded).
[39] Folios 90, 92, 93 and 94 refer.
[40] Folio 102 of the Reply.
Clinical notes of Workers Doctors commence on 11 April 2024 (two months after the cessation of employment) and rely largely on the applicant’s self reporting of symptoms. The serial notes record back complaints and workplace bullying, such issues being notably absent from Dr Forfa’s notes who was treating the applicant at the time of the claim and whilst he was still employed with the respondent. I find these notes attract minimal weight. They are generated two months after the cessation of employment and the complaints are inconsistent to the detailed notes obtained by Dr Forfa. Speculation as to why this may be so is unhelpful at this juncture and certainly unnecessary given my findings on their value.
Dr Bokor, shoulder surgeon reported on 10 April 2024[41] diagnosing increasing left sided neck and shoulder pain which has “gradually has been getting worse” and “a combination of cervico brachial irritation and some rotator cuff tendonitis”.
[41] Folio 10 of the Reply.
The respondent qualified Dr Rimmer, orthopaedic surgeon. In his report dated 11 July 2024 he diagnosed “aggravation left shoulder rotator cuff tendinosis and declined to comment on causation in the absence of further radiological investigations.”[42]
[42] Folio 32 of the Reply.
In a supplementary report dated 25 September 2024[43], Dr Rimmer considered the applicant had not sustained an injury to his lumbar spine in or about February 2024 as Dr Forfa listed injury to the left shoulder only.
[43] Folio 38 of the Reply.
In his report dated 26 September 2024,[44] he recalls assessing the applicant 10 weeks earlier. He reviewed the MRI scan of the left shoulder which showed tendinopathy in the rotator cuff but considered there was no evidence of bursitis or glenohumeral joint effusion. He confirmed the MRI scan of the lumbar spine dated 17 May 2024 showed multi-level disc degeneration, with no neural impingement, which he considered was age related.
[44] Folio 40 of the Reply.
Dr Rimmer repeatedly commented the applicant was a poor historian and as a result his opinion was compromised. He diagnosed left rotator cuff tendinopathy, degenerative osteoarthritis of the lumbar spine (age related) and tendinopathy of the right rotator cuff (provisional in the absence of radiological investigations).
Overall, he concluded the applicant sustained an injury to the left shoulder only on 12 February 2024 and that the right shoulder and lumbar spine conditions were due to the “nature and conditions of his workplace”[45] (a view that is inconsistent given his findings on age related changes) and considered physiotherapy was appropriate for both shoulders and lumbar spine.[46]
[45] Folio 44 of the Reply.
[46] Folio 50 of the Reply.
SUBMISSIONS
The applicant submits:
(a) reference to injury on 15 April 2013 is to be omitted as that injury predates the self insurer’s risk;
(b) the medical evidence establishes the injuries to the bilateral shoulders and lumbar spine are in the nature of a ‘disease’ aggravated by the nature and conditions of employment as a painter and despite the nomination of various frank injuries in the ARD, there is no factual or medical evidence that the applicant suffered an injury that did not “consist in” the aggravation of a disease condition – s 16 of the 1987 Act;
(c) the aggravation of separate conditions by the one set of duties led to a single injury (as opposed to more than one injury that needs to be treated as one injury – s322 of the 1998 Act) and so the matter should be referred to a medical assessor accordingly;
(d) alternatively, the impairment and treatment relating to the left shoulder ‘results from’ the right shoulder injury which became symptomatic in July 2020 and so should be assessed as a consequential condition, and
(e) the applicant suffers from an undisputed adjustment disorder which is supported as being related to his employment and in the absence of competing evidence, his claim for both primary and/or secondary psychological condition should be accepted.
The respondent submits:
(a) the evidentiary onus has not been discharged, that is, the evidence does not establish that employment was the ‘main contributing factor’ in the aggravation of the disease of the lumbar spine and bilateral upper limbs;
(b) the respondent accepts the last date of employment was 26 February 2024 and would be the correct deemed date of injury in the event of a ‘disease’ injury;
(c) the ARD and the claims history reveals the applicant suffered a number of discrete injuries and not aggravations of a disease process;
(d) there is insufficient evidence to establish the applicant has suffered a consequential condition to the left shoulder as a result of right shoulder injury. In any event the respondent accepted the applicant suffered an injury to the left shoulder on 12 February 2024, and
(e) the only evidence relating to back pain in the workplace context is in 2019 and there is a paucity of evidence to suggest that this was an aggravation of a disease.
In reply, the applicant submits:
(a) the applicant has discharged the evidentiary burden of ‘main contributing factor’. The failure by a qualified doctor to address the legal test is not fatal as overall assessment is an evaluative process and in this case there is no evidence that competing factors are apparent, with employment being the only factor in the aggravation of the disease conditions;
(b) the applicant accepts that a number of dates of injury have been claimed however when assessed holistically reveal each claim arose during the normal nature and conditions of the applicant’s work as a painter, and that each injury “consisted in” the aggravation of a disease thereby falling squarely within s 16 of the 1987 Act. (Dimovski),[47] and
(c) impairment resulting from ‘injury’ to different body parts arising out of the same nature and conditions (that is between 30 June 2016 and 26 February 2024) is impairment that “results from more than one injury arising out of the same incident” – s 322(3) of the 1998 Act (Turton).[48]
[47] Rail Services Australia v Dimovski & Anor NSWCA 267.
[48] NSW Fire Brigades v Turton [2008] NSWWCCPD 66.
APPLICATION OF THE LAW, FINDINGS AND REASONS
Section 4 of the 1987 Act defines “injury” as follows:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and….
Some difficulty arises in the determination of this matter as the bulk of the evidence referred to “nature and conditions of employment” and “frank injury”. These terms do not appear in the legislation and the term “nature and conditions of employment” in particular has been subjected to criticism at appellate level.[49] The expressions are commonly taken to refer to, or be synonymous with, a “disease” injury and a “personal” injury respectively, although this is not correct and can be misleading. In reality, the “nature and conditions of employment” means the receipt of a series of micro-traumata due to the employment duties undertaken over time (which mechanism can produce a “personal injury”) while a “frank injury” is a specific traumatic incident (which can consist in the aggravation of a disease).[50] In order to avoid the potential errors that can arise from the use of these two expressions, particularly in the context of this case, I will return to the definitions of “injury” set out in s 4 of the 1987 Act.
[49] NSW Police Force v Gurnhill [2014] NSWWCCPD 12.
[50] Strasberger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354, in particular at [20] and [22].
It is well established that a “personal injury” within the meaning of s 4(a) of the 1987 Act is made out where, there is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not sudden, is at least “identifiable”.[51] (May).
[51] Military Rehabilitation and Compensation Commission v May [2016].
A “disease”, however and for the purposes of s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[52] (and it is now well established that a relevant aggravation injury (which for present purposes shall include exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself and that it will be sufficient if the symptoms of the disease have been increased in the course of employment and the employment has been the main contributing factor to that increase in symptoms.[53] Moreover, employment need only be the main contributing factor to the aggravation and need not contribute to the causation or progression of the underlying disease itself.[54]
[52] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[53] see, for example, Federal Broom Co Pty Ltd v Semlitch [1964] HCA34 and Rural Press Ltd v Hancock [2009] NSWWCCPD 160.
[54] see, for example, Murray v Shillingsworth [2006] NSWLR 451 and State Transit Authority of NSW v El-Achi [2015] NSWWCCPD 71.
Further, “an incident (an injurious event) is only a mechanism for suffering an injury and is not itself a section 4 injury” and that “the relevant ‘injury’ in section 4 is the pathology (my emphasis) that has arisen out of or in the course of employment”.[55] This is not to say that the mechanism of injury will not be relevant to issues concerning liability, but what must be assessed is the consequence of injury specifically in terms of pathology. Thus, the first and critical matter to be determined is the nature of the physical or pathological “injury” for which compensation is being sought and the consideration of whether such injury was “received” in compensable circumstances is directed to that “pathology”.
[55] Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.
Before embarking on discernment, I feel obliged to record that the evidence from both independent medical examiners in this matter was unsatisfactory in a number of respects. I find the evidence of Dr Endry-Walder and especially Dr Rimmer to be suboptimal in reasoning and explanation and lacking any real engagement with the issue of the nature of the injury the applicant has, or may have, suffered. In these circumstances, I find the opinions are of little probative weight. I do appreciate that Dr Rimmer had difficulty assessing the applicant as he was a “poor historian”.
Having made these findings in relation to the medical evidence, it is appropriate to recall that the applicant carries the onus of establishing his case on the balance of probabilities, meaning that I must feel a sense of actual persuasion or affirmative satisfaction that his case has been made out. I am not, however, required to be satisfied to a degree of medical or scientific certainty.
Lumbar spine
With regards the lumbar spine, the applicant suffered an injury in 2019 for which liability was accepted. His statement and recount of the history to various assessors and specifically Dr Eric Lim (whom was only consulted after he ceased employment) asserts that he suffered an injury or aggravation to the lumbar spine in February 2024 and his statement suggests that the “nature and conditions” of his employment including carrying and bending were responsible for the aggravation of underlying pathology. Careful and extensive review of the clinical notes of Dr Forfa confirms there were no complaints of back symptoms between 2019 and 2024. There was a complaint of back pain in 2023 which seemed to be attributed to weight gain.
I acknowledge authorities indicate care should be taken not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment which could possibly explain the lack of recorded complaints to the lumbar spine arising from any work related event.[56] I find that this is not the case in this matter. I find the notes of Dr Forfa to be thorough. The applicant regularly attended on the practice and the doctor carefully has recorded a number of non work related medical conditions in great detail, taking necessary referral action and ordering investigations as required. It beggars belief that Dr Forfa would not record any contemporaneous symptoms of back pain or treatment suggestions in the context of employment circumstances over the years and specifically in 2024 (when the applicant claimed a back strain just prior to leaving his employment), when he carefully recorded various work related complaints. I find given the level of detail and care taken in his notes and management of the applicant that his records are an accurate reflection of the complaints made to him (prior to litigation) and that the only workplace injury relating to the lumbar spine is as claimed and accepted by the respondent, that is 11 March 2019. Whilst the applicant has undergone investigations for the lumbar spine, this appears to be in the context of symptoms arising from weight gain. The radiological reports demonstrate that there is a degenerative process (spondylosis) however there is a paucity of medical evidence which prevents a finding that employment circumstances were the main contributing factor to the ‘disease’ as required by s 4 of the 1987 Act. I accept the applicant suffered back injury in 2013, (a claim removed from this application). It could be argued that the nature of the work of a painter would as a matter of common sense aggravate any lumbar spinal conditions. Such a position, in the absence of any contemporaneous ongoing complaints or precise details of the exact nature and the impact on any pathology is not compelling. As indicated above, I do not require scientific proof of the nature of impact on the pathology, but overall given the absence of complaints and medical evidence, I find the applicant has not discharged his onus in establishing a disease injury to the lumbar spine to which his employment was a main contributing factor.
[56] Mastronardi v State of New South Wales [2009] NSWCA 270.
Upper limbs
The respondent asserts the applicant sustained discrete injuries which have been well documented and ultimately resolved after treatment. It further maintains such injuries or reports were not aggravations of a disease process preventing aggregation of impairment any permanent impairment assessment.
The applicant contends that each of these claims was merely a continuation of aggravation of the original pathology (that is, sub acromial bursitis and tenosynovitis aggravated by daily duties as a painter which were heavy and repetitive) (unchallenged by the respondent) leading to a single injury to which employment was the main and only contributing factor. I agree with this submission because assessment of the evidence globally establishes;
(a) the diagnosis is consistent with a disease process that is, bicipital tenosynovitis and sub acromial bursitis;
(b) at all times, the clinical notes and the applicant’s statement confirm that symptoms were “ongoing” and subject to a “bit of a cycle”;
(c) symptoms were aggravated by lifting and reaching at work worsening gradually over time[57] and occurred due to overuse;[58]
(d) pain in both upper limbs was worse after a heavy workload and mainly at night;
(e) there is no evidence to contradict or establish that the applicant suffered an injury that did not “consist in”[59] the aggravation of the disease conditions suffered, and
(f) the bulk of the evidence reveals that no other factors apart from employment duties contributed to the disease process and that the global pathology of tenosynovitis and been aggravated by what could best be described as micro-traumata arising from his work as a painter.
[57] Folio 69 of the ARD.
[58] Folio 63 of the ARD.
[59] Section 16 of the 1987 Act
I find the applicant has discharged the onus in establishing he aggravated underlying disease pathology by virtue of the nature and conditions of his employment in both upper limbs and employment was the main contributing factor in the development of the injury with reference to s 4(b)(ii) of the 1987 Act. I further find, for the reasons above, that the applicant’s claimed impairment to the right and left shoulders arise out of the same disease process aggravated by virtue of the nature and conditions of employment and is impairment that “results from more than one injury arising out of the same incident”, thereby enabling aggregation with reference to s 322(3) of the 1998 Act.
Section 60 expenses
A general claim for past treatment expenses is made with respect to both the orthopaedic injuries discussed above. In view of my findings concerning the lumbar spine and bilateral shoulders, it is appropriate to make a general order for payment of reasonably necessary treatment expenses given that most appear uncontroversial as they relate to general practitioner visits and physiotherapy once the claim was declined.
As regards the claim for psychological expenses, the submissions failed to address the issue of injury and causation preventing findings to be made in a procedural fair climate. I considered inviting the parties to address the matter via further submissions and requesting an explanation as to why such matters were not addressed initially, but given delays thus far, (initially due to the time required to provide submissions and then the end of term shutdown) I grant liberty to apply in respect of this issue within 14 days of these reasons if necessary.
SUMMARY
Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.
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