Gutierrez v State of New South Wales South Western Sydney Local Health District

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gutierrez v State of New South Wales South Western Sydney Local Health District [2024] NSWPIC 656
APPLICANT:	Teodolinda Gutierrez
RESPONDENT:	State of New South Wales South Western Sydney Local Health District
MEMBER:	Mitchell Strachan
DATE OF DECISION:	28 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Consequential condition; Kooragang Cement Ltd v Bates applied; relevant date of injury for lump sum claim where further aggravation injury; Haddad v The GEO Group Australia Pty Ltd; Ozcan v Macarthur Disability Services Ltd; Held – applicant sustained aggravation injury to right shoulder on 5 December 2019 together with consequential condition to left shoulder; impairment from later aggravation injury to be assessed with impairment from 2 February 2010 injury.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant sustained a further injury to her right shoulder and consequential condition to the left shoulder with a deemed date of injury of 5 December 2019. 2. The 5 December 2019 injuries resulted from the 2 February 2010 injuries to the applicant’s right upper extremity (shoulder and elbow), cervical spine and scarring and therefore are to be assessed together with a date of injury of 2 February 2010. 3. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor (MA) for determination of the permanent impairment arising from the following: Date of injury: 2 February 2010 (incorporating further injury on 5 December 2019) Body systems referred: Right upper extremity (shoulder and elbow) Left upper extremity (shoulder) Cervical spine Scaring (TEMSKI) Method of assessment: Whole Person Impairment 4. The documents to be referred to the MA to assist with their assessment are to include the following: (a) This Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant has been employed by the respondent in a clerical role since 1991. Her role includes extensive data entry and numerical keying.
In 2004 she started to experience problems with her right arm, elbow and right thumb. She was found to have a tear in her right elbow and underwent surgery. She returned to work but the pain in her elbow and thumb never completely disappeared.
She had further surgery to her elbow in 2010 as well as treatment to her shoulder and neck.
In 2012 the applicant brought a claim for lump sum compensation for injuries to her right shoulder, right wrist, cervical spine and scaring due to the nature and conditions of her employment with a deemed date of 2 February 2010. She ultimately received lump sum compensation with respect to 13% whole person impairment (WPI) for injury to her right shoulder, right elbow, cervical spine and scarring.
She continued to work for the respondent. She came to further shoulder surgery on 5 December 2019.
She has brought a further claim for lump sum compensation with respect to injuries to her right shoulder, right elbow, cervical spine, scarring (TEMSKI) and her left shoulder.
Liability for the further claim was disputed by the respondent’s insurer and the applicant has now brought the current proceedings in the Commission.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained either a frank injury to her left shoulder or consequential condition to the left shoulder; and
(b) the relevant date of injury for referral of the claim for lump sum compensation to a medical assessor.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing in Sydney on
6 November 2024.
The applicant was in attendance, represented by Mr S Hickey of counsel instructed by Mr Lam of Longton Compensation Lawyers. Mr G Barter of counsel appeared for the respondent instructed by Mr McCarthy of Moray & Agnew Lawyers. A representative of the respondent’s insurer, EML, was also in attendance.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attachments.
At the commencement of the arbitration hearing, I reminded counsel of the need to refer in submissions to that evidence which was relevant to my consideration of the issues in dispute.
In Gamestar Pty Ltd v Lockhart (1993) 112 ALR 623 (Gamestar) the High Court observed that a Court is not required to “search for supportive evidence” in support of a claim. The High Court stated:
“In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”
These observations have been applied in the Workers Compensation Commission (see for example Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34] and in the Commission Sara v G&S Sara Pty Ltd [2021] NSWPIC 286). The principle is otherwise consistent with the objectives of the Personal Injury Commission Act 2020 (PIC Act) which provide that the Commission is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible” (s 3, PIC Act).
I otherwise observe that the Commission has a statutory obligation to provide a “brief statement of reasons”.

Oral evidence

No application was made to adduce any oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Injury to the left shoulder

Applicant’s submissions

The applicant submits that she developed a consequential condition in her left shoulder resulting from injury to her right upper extremity and neck, consistent with the principles set out in Kooragang Cement Ltd v Bates.[1]
[1] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Bates).
The applicant relies on the qualified opinion of Dr Guirgis, consultant orthopaedic surgeon, set out in reports dated 7 June 2022, 20 March 2023 and 26 April 2024.
The formatting of Dr Guirgis’ reports make them at times somewhat difficult to follow. Much of each page is taken up with an extraneous letterhead detailing the doctor’s qualifications and contact information. The text of the report is entirely bolded serving no purpose nor indicating any emphasis. The report also includes copies of indexes, operation reports, radiology reports, notes and part of the statement evidence of the applicant. This makes it difficult to locate within the report the opinion that the party is asking a decision maker to accept and the doctors own reasoning for reaching that opinion. Although not enacted in its current form until after the arbitration hearing in this matter, the parties are remined of Rule 67(b)(ii) of the Personal Injury Commission Rules 2021 (the Rules) and the prohibition on the inclusion of duplicate documents.
In his first report of 7 June 2022 Dr Guirgis expresses the opinion that the applicant developed the consequential onset of symptoms and signs of rotator cuff syndrome in her left shoulder explaining that for overuse injuries that the rate of injury exceeds the rate of adaptation and healing in the tissue.
In the second report of 20 March 2023, Dr Guirgis reviewed part of the applicant’s statement evidence and expressed the opinion that as a result of the injury to the right side, she favoured use of the left arm in her daily and work activities to avoid the pain on the right side.
Dr Guirgis provided a third report dated 26 April 2024. He took a history that in 2018, the applicant moved her numerical keyboard to her left side to relieve the pain she was experiencing in the right side. He took a history of the applicant changing the way she took folders weighing two to three kilograms from an overhead shelf and returning them, relying more on her left arm than her right arm. He also took a history of changes the applicant made at home, performing more household duties including cleaning, carrying groceries and extended stirring and whisking with her left arm rather than right arm. Dr Guirgis reached the opinion again that there was a consequential onset of symptoms and signs of rotator cuff syndrome in her left shoulder.
The applicant submitted that Dr Guirgis had recorded a detailed history of the changes in the way she undertook activities, both at home and at work, upon which to base his opinion that the applicant was suffered a consequential condition in her left shoulder as a result of injuries to her right upper extremity.
The applicant submitted that this history recorded by Dr Guirgis is more detailed than that of Dr Machart and I would prefer the opinion of Dr Guirgis.
The applicant referred to the report of Dr Jefferies dated 30 August 2019. He took a history that the applicant’s shoulder pain had gradually worsened over the past year without any specific traumatic event. He notes a history of conservative treatment over that time and a recommendation for right shoulder surgery. Dr Jefferies noted that she avoided use of the right arm and had lost confidence in her grip strength. Dr Jefferies considered the applicant remained fit for work but to avoid overhead activities which may aggravate the shoulder.
Dr Jefferies provided a further report dated 27 September 2019. There had not been much improvement in her right shoulder. He recorded that due to the pain in the right arm she has been favouring use of the left arm, resulting in some mild pain in the left shoulder.
The applicant saw Dr Raymond Wallace (at the same clinic as Dr Jefferies) on
22 November 2024. She had ongoing complaints in the right shoulder. Dr Wallace noted she had been discharged from the ARC Shoulder Program and was awaiting operative intervention. He noted a diagnosis of partial thickness supraspinatus tendon tear and aggravation of pre-existing degenerative changes in the right shoulder resulting from a work injury on 22 June 2018
The applicant also referred to a report of Dr Gupta, her general practitioner, dated
5 April 2023. Dr Gupta noted a record of left shoulder pain on 16 September 2019 and that imaging studies were carried out at that time. Dr Gupta confirms that overuse of the left shoulder due to right shoulder pain is one of the possibilities for her left shoulder pain.
The applicant submitted that the report of Dr Gupta supported the opinions of Dr Guirgis and Dr Jefferies with respect to the relationship between the right shoulder injury and onset of pain in the left shoulder.
The applicant referred to the reports of Dr Warren Kuo, the applicant’s treating surgeon.
In his first report, dated 3 June 2019, Dr Kuo noted the applicant presented with right shoulder pain with symptoms dating back quite a number of years together with right elbow pain for which she had surgery.
Dr Kuo sees the applicant a number of further times and recommends surgery to the right shoulder.
On 17 December 2019, he reported that she was two weeks post operative. He recommended commencing physiotherapy and that he would see her at two months post-surgery and she was to remain off work until that time.
The applicant submitted that this was clear evidence of incapacity as a result of the right shoulder condition from about 4 December 2019. I note the operation report of Dr Kuo which is in evidence records the date of the surgery on 5 December 2019.
On 12 February 2020, the applicant saw Dr Kuo again. She was making improvements and Dr Kuo allowed her to return to work on light duties.
On 25 March 2020, the applicant saw Dr Kuo and was improving however hydrotherapy was not possible as the pool at been closed due to Covid-19 restrictions. He recommended a joint injection. He noted the left shoulder had quite marked bursitis with partial supraspinatus rotator cuff tear.
On 4 May 2020, Dr Kuo reported that the applicant was five months post operative. She had improvements in pain, but her movement remained restricted. He recommended right shoulder manipulation under anaesthesia.
On 1 July 2020, Dr Kuo reported that the applicant was one week post the right shoulder manipulation procedure and made recommendations for further physiotherapy and a gym program. He also noted once she was sufficiently recovered he could address the left shoulder.
The applicant continued to attend on Dr Kuo. On 6 May 2021 Dr Kuo noted that the applicant had received approval for injection to the right elbow. Her left shoulder also continued to trouble her and he recommended an injection to the left shoulder. On 17 June 2021 Dr Kuo confirms the left shoulder injection was approved.
The applicant referred to her statement evidence of 20 March 2023 and 31 July 2024.
The statement records that she first commenced employment with the respondent in January 1991. Her role has always been of a clerical nature, including extensive data entry and numerical keying. She states that prior to commencing with the respondent she had no problems with her neck, right elbow, right shoulder or left shoulder.
In 2004 she started to experience problems with her right arm, elbow and right thumb. She was found to have a tear in her right elbow and underwent surgery. She returned to work but the pain in her elbow and thumb never completely disappeared.
She continued to work and felt increased pain in her right shoulder, right elbow and neck. The applicant states she saw her long-term general practitioner and was referred for a CT scan of her neck on 17 February 2010. She had physiotherapy and cortisone injections to her right elbow and right shoulder. She underwent massage to her shoulder blades, neck, right shoulder, and right elbow together with other conservative treatment. She underwent further right elbow surgery on 4 May 2010.
The applicant states she continued to see her general practitioner to manage pain in her neck, right shoulder and right elbow with further imagining studies and injections in 2011, 2012, 2016, 2018 and 2019 before ultimately being referred to Dr Kuo.
The applicant provides details how she changed the manner in which she undertook various tasks (both at work and at home), using her left arm and shoulder more than she had previously due to the increasing symptoms in her right shoulder, elbow and arm.
The applicant submits that based on the available evidence I would find that the applicant has a consequential condition to her left shoulder as a result of compensating to protect her painful and operated on right shoulder. The respondent submits that the date of injury would be 5 December 2019 with a further date of injury of 24 June 2020 due to incapacity for the right shoulder injury which arose at that time and from which the consequential left shoulder condition results. The issue with respect to the relevant date of injury is addressed further below.

Respondent’s submissions

The respondent’s primary argument, based on the opinion of Dr Machart, is that there is no work relationship to the applicant’s left shoulder complaints. They are simply age related degenerative changes.
The respondent accepts criticism can be made of Dr Machart’s opinion but one of them is not that he took the wrong history and he recorded in his report details of the applicant changing the side of her numerical keyboard and the manner in which she took files from shelves while recovering from right shoulder surgery.
The respondent further submitted that Dr Machart cannot be criticised for finding there is no pathology resulting from the nature and conditions of employment or consequentially. However, it is fair to say that he didn’t consider the possibility that there were pre-existing conditions in the left shoulder that may or may not have been aggravated by the nature and conditions of employment. The respondent accepts this is something he hasn’t addressed.
The respondent submits that this primary argument with respect to the left shoulder is consistent with opinion of Dr Gupta that an overuse injury to the left shoulder is a possibility but it is only a possibility. The respondent submits this is also consistent with Dr Jefferies who in his report of 30 August 2019, “It is difficult to determine, given her age, how much of this can be explained by overuse of the right shoulder in relation to work conditions, and how much degenerative change would have been present prior to this episode”.
The respondent referred to the statement of the applicant where she stated the pain in her left shoulder started about the middle of 2019 following in 2018 when she moved the numerical keyboard to the left side. The respondent submitted this was consistent with the report of pain to Dr Jefferies and the reports of Dr Gupta.
There respondent submitted that if I do not accept its primary argument that the left shoulder pain is simply age related degenerative changes, there are two clear competing choices.
Firstly, the symptoms in the left shoulder is due to pain in right shoulder (overuse) and it is a consequential condition and the relevant date of injury would have to be 2 February 2010.
Alternatively, the nature and conditions of the employment caused a separate and distinct injury to the left shoulder. In that case, the left shoulder is a stand-alone assessment. There is no evidence it is over 10% and would therefore I would not refer in any event. In support of this analysis of injury to the left shoulder, I could be satisfied that she was suffering from bursitis and that the nature and conditions of her employment have aggravated that condition. The respondent accepted in submissions that this has not been considered by Dr Machart and would require a finding that employment was the main contributing factor to the aggravation of the disease injury in accordance with s 4(b)(ii) of the 1987 Act. Again, the respondent accepted that Dr Machart doesn’t support this. The respondent also accepted when I raised it that the applicant has given evidence of a number of factors outside of work also contributing to the left shoulder condition and the respondent conceded this was problematic to the analysis.
The respondent submits that if I accepted a separate left shoulder injury, I would find that the nature and conditions changed in 2018 when the applicant moved the numerical keyboard from right side to the left side. Since neither Dr Jefferies or Dr Gupta have provided a clear basis to determine whether it is a consequential injury or a separate and distinct nature and conditions injury, it would be difficult to decide.
The respondent submits that a separate injury would be consistent with the pathology found by Dr Guirgis and the opinions of Dr Gupta and Dr Jefferies. It is also consistent with the applicant’s evidence of changes in her work practices in 2018.

Applicant in reply

In reply the applicant submitted that the evidence supports a finding that the injury to the left shoulder was both a nature and conditions injury and a consequential condition however for a nature and conditions injury I would only need to find that the condition results from compensatory overuse.

With respect to the criticism made by the respondent with respect to the opinions of Dr Jefferies and Dr Gupta, being that they have essentially not lifted the applicant’s case out of the depth of mere possibility, provided there is a level of evidence that shows there is an injury, even though there are other medical opinions that rise only to the level of possibility, then with the support of that other evidence, I could still have a sense of actual persuasion.[2]
[2] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

Consideration

The applicant submits that she has developed a consequential condition in her left shoulder because of compensatory overuse due to pain and reduced function in her right shoulder. There is no dispute that the applicant is suffering from an injury to her right shoulder, liability for which has been accepted by the respondent’s insurer.
The respondent submits in the first instance that the condition in the left shoulder is purely a result of age-related degenerative change and alternatively that it is a separate and distinct injury resulting from the changed nature and conditions of her employment.
To establish a consequential condition to the left shoulder, the applicant needs to establish that the condition results from the accepted injury to her right shoulder, on a common sense basis.[3]
[3] Bates at [810].
The timeline with respect to the onset of symptoms in the applicant’s left shoulder is largely uncontroversial. She had had a long history of complaints with respect to her right elbow and shoulder since 2004. She had come to surgery and conservative treatment in 2004 and 2010. From 2010 onwards she continued to have intermittent conservative treatment and by 2018 the right shoulder further deteriorated such that she was ultimately referred to Dr Kuo. She came to further right shoulder surgery in 2019. She continued to work through this time.
I find that the applicant developed a consequential condition in her left shoulder resulting from injury to the right shoulder for the following reasons.
I accept the undisputed evidence of the applicant that, as a result of the increasing symptoms in her right shoulder, she changed the way she undertook activities both at work (moving the numerical keyboard from her right side to her left side and changing the way she lifted down folders) and at home (particularly cooking and extended stirring and whisking such as when making mayonnaise).
The applicant’s evidence of onset of pain in the left shoulder in around 2019 is consistent with the contemporaneous reports of Dr Kuo, Dr Jefferies and Dr Gupta (who provided a report in 2023 but had been the applicant’s general practitioner in 2018).
I accept the evidence of Dr Guirgis with respect to the causal relationship between the condition in the left shoulder and the right shoulder injury. Dr Guirgis took a detailed history from the applicant with respect to the onset of symptoms in her left shoulder and the circumstances at that time and provided the opinion that the condition in the left shoulder results from favouring the right shoulder both at work and at home. This position is further supported by the opinions of Dr Gupta and Dr Jefferies which, while only confirm overuse as a possible explanation, do not at all exclude it and form part of the body of overall supportive evidence.
I have considered the opinion of Dr Machart. In his first report of 17 January 2023, he considered the applicant had degenerative pathology in the left rotator cuff which was not caused by changing the keyboard to the left side. He noted that there was occupational ache without structural basis. Dr Machart does not explain the cause of the occupational ache. He also expresses the opinion that the question of overuse is not relevant as the left shoulder is doing something that it is not designed to do, being operating a keyboard. He then opines that he could not conclude that the left sided keyboard use caused rotator cuff disruption.
There does not appear to be any explanation for the left sided occupational ache on his history, other than the change of the keyboard to the left side which on the applicant’s the evidence was a due the injury to the right shoulder. This tends to support a finding of a consequential condition, even if not to the rotator cuff pathology, but a finding of pathology is not necessary for a finding of a consequential condition.
Further, as conceded by the respondent, Dr Machart has not considered whether the degenerative changes in the left rotator cuff could have been aggravated or rendered symptomatic by an overreliance on the left arm due to the pain and restriction on the right side.
Dr Machart further disputes the existence of consequential conditions at a population level.
In his further report of 7 November 2023, he maintains his opinion with respect to the left shoulder and further opines that office type duties do not cause structural pathology in the shoulder. This opinion does not assist and is misguided with respect to the threshold needing to be met to establish either a consequential condition or an aggravation injury. There is no requirement for the underlying pathology itself to result from work.
For these reasons, I do not find the opinion of Dr Machart to be persuasive with respect to injury to the left shoulder and prefer the opinion of Dr Guirgis supported by the balance of the body of evidence.
For the same reasons, I reject the respondent’s submission that the applicant was only suffering from age related degenerative change in her left shoulder. While the underlying pathology in the rotator cuff may have been age related, I am satisfied, having regard to the opinion of Dr Guirgis and the supporting evidence I have referred to above, together with the timeline of the onset of symptoms in the left shoulder that the injury to the right shoulder and subsequent overcompensation, materially contributed to the condition in left shoulder.
Finally, the respondent submitted, in the alternative, that there was a distinct and separate nature and conditions injury to the left shoulder due to moving the numerical keyboard to the left side and changing the way she moved folders.
This argument is not supported by the opinion of Dr Machart who did not consider that office duties could cause structural change in the shoulders. It would also require the respondent to establish that the applicant’s employment was the main contributing factor to at least an aggravation of the underlying disease process in the left shoulder in accordance with
s 4(b)(ii) of the 1987 Act.
This position is not supported by any medical evidence and is contrary to the evidence of the applicant who described a significant change in activities at home including extended whisking while making mayonnaise with her left arm due to the pain in her right arm, prior to the onset of pain in the left shoulder. There is no rational basis to conclude that the changes at work caused left shoulder pain but the changes at home did not, such that employment was the main contributing factor.
On this basis, I am not satisfied that employment was a main contributing factor to an aggravation injury to the applicant’s left shoulder.
Based on all the evidence, I am satisfied that the applicant developed a consequential condition in her left should as a result of overcompensating due to pain and restriction in the right shoulder including changes to the way she undertook both work activities and activities at home.

Deemed date of injury

Applicant’s submissions

During the arbitration hearing, the applicant relied on three separate dates of injury. Some of these were different to the dates pleaded in the ARD.
The first is 2 February 2010 being the deemed date of injury for the applicant’s 2012 claim for lump sum compensation with respect to injury to right upper extremity (elbow and shoulder), cervical spine and scarring (TEMSKI). The applicant has received lump sum compensation with respect to 13% WPI with respect to that date of injury. Neither party submitted that this date of injury was incorrect or should be changed given the recent decision of the Court of Appeal in Haddad v The GEO Group Australia Pty Ltd (Haddad).[4]
[4] [2024] NSWCA 135.
The applicant submitted that, for the nature and conditions claim pleaded, it will be necessary to find a deemed date or dates of injury in accordance with s 15 and/or s 16 of the 1987 Act. In doing so, the applicant submitted that the decision of Haddad (as applied in the decision of Principal Member Harris in Ellis v Dontarna Pty Ltd)[5] was instructive, in so far as it is necessary to determine whether there is evidence that provides for a finding of incapacity for which a claim could be made.
[5] [2024] NSWPIC 513.
The applicant submitted 5 December 2019 was the date that the applicant became incapacitated as a result of her right shoulder injury for which she came to surgery on that day and Dr Kuo expressed the opinion that she would be off work for two months post operatively. Incapacity as at 5 December 2019 was not disputed by the respondent.
The applicant then submitted she returned to work and that there was a further deterioration in her condition due to her employment with a further deemed date of injury on 24 June 2020 when she underwent the further shoulder manipulation surgery under anaesthesia.
The applicant did not assert in submissions that there was any further incapacity or point to any further evidence that there was any further incapacity as a result of injury to the right elbow or cervical spine, nor assert that I would find a further date of injury with respect to those body parts.

Respondent’s submissions

The respondent submits that if I am to find a consequential injury then on the strength of the authorities referred to then the only date of injury would be 2 February 2010.

Consideration

There is no dispute that the applicant sustained an injury to her right upper extremity (shoulder and elbow), cervical spine and scarring resulting from the nature and conditions of her employment between 2004 and 2 February 2010 with a previously accepted deemed date of 2 February 2010. She has received lump sum compensation with respect to 13% WPI resulting from this injury.
I accept, that where she has remained in that employment, she can sustain a further aggravation injury in accordance with s 4(b)(ii) of the 1987 Act.
I accept the applicant’s evidence that following 2 February 2010 she returned to work and continued the clerical role that she has undertaken since 1991 which involved significant data entry and keyboard work, including the use of a numerical keyboard to input codes.
Her symptoms deteriorated such that she eventually consulted Dr Kuo and came to surgery on 5 December 2019. She was incapacitated because of that surgery and period of recovery that followed. In accordance with s 16(1)(a)(i) of the 1987 Act, the deemed date of injury is the date of incapacity. On this basis, I find the applicant suffered a further aggravation injury to the right shoulder and consequential injury to the left shoulder on 5 December 2019. This is consistent with the approach taken by the Court of Appeal in Haddad.
The applicant submitted that the further incapacity on 24 June 2020 when she underwent the shoulder manipulation surgery would bring around a further date of injury. I reject this submission.
The reports of Dr Kuo to Dr Gupta chart the applicant’s progress following the 5 December 2019 surgery. When the applicant saw Dr Kuo on 4 May 2020 she was five months post her right shoulder surgery. She had had improvements in pain, but her movement remained restricted. It was on this basis that he recommended the shoulder manipulation procedure under anaesthesia. In essence, Dr Kuo was not satisfied with the recovery from the initial surgery and recommended the further procedure. There is no evidence that while the applicant returned to work there had been a separate aggravation injury. For these reasons, I am not satisfied that there had been a further aggravation injury in accordance with s 4(b)(ii) such that s 16(1)(a)(i) would produce a further separate deemed date of injury of
4 May 2020.
As a consequential condition, the injury to the left shoulder will have the same date of injury as the further injury to the right shoulder.
I have not made any further finding with respect to the further injury or a further date of injury with respect to the right elbow or cervical spine and this issue was not advanced by the applicant in submissions.

Date of injury for referral to Medical Assessor

Applicant’s submissions

The applicant submitted that injury on all three dates should be referred to the Medical Assessor for assessment of permanent impairment. This was on the basis that where there is a continuity of performance of work there will be ongoing pathological changes or aggravation of symptoms which would result in further deemed dates of injury under s 15 of the 1987 Act.
During submissions I queried with counsel for the applicant, which day would be used for assessing the monetary value of any compensation which would be payable to the applicant. The applicant’s primary submission was that this should be dealt with following the assessment by the medical assessor. I indicated that I would need to determine the relevant date before referring the matter to a medical assessor.
The applicant ultimately submitted that if there can be an aggregation of the impairments (which is the basis upon which the claim was brought) then it may all be referrable to the 2010 date of injury consistent with State Government Insurance Commission v Oakley[6] and Ozcan v Macarthur Disability Services Ltd.[7]
[6] (1990) 10 MVR 570.
[7] [2021] NSWCA 56.
However, the applicant further submitted that the manner in which the law with respect to deemed dates of injury has developed it is inconsistent with an ongoing nature of a nature and condition injury where a worker is continually exposed to an ongoing cause of aggravation. The law has it has developed denies the worker the benefit of a later date of injury with higher monetary benefits. The applicant submitted that the latter deemed date should be the culmination of the disease, up to that date she had been performing work due to the nature of which the work was due. The applicant again expressed the view that this should be dealt with at a later time.

Respondent’s submissions

The respondent submitted that if I was to find that all body parts need to be referred for assessment, then I have no alternative other than 2 February 2010 because all the incapacity results from that date and that is consistent with Haddad and Ozcan. There are consequences with it being unfair but that is the law as it stands.
The respondent further submitted it also makes sense that I couldn’t use any of the other dates as there was evidence of complaints in the left shoulder before each of those dates.

Consideration

The applicant has an accepted injury with a deemed dated of 2 February 2010 to her right upper extremity (shoulder and elbow), cervical spine and scarring (TEMSKI). I have found that the applicant has sustained a further injury to the right shoulder and associated consequential condition to the left shoulder with a deemed date of injury of
5 December 2019.
Section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that “Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker”.
Section 322(3) of the 1998 Act provides that “Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker’.
In Ozcan, Macfarlan JA (with Simpson AJA and McCallum JA agreeing) noted that the relevant question “was whether the later [injury] resulted from those on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the [first injury] because all the injuries arose out of the same incident.”[8] MacFarlan JA further concluded in Ozcan “the impairments are however connected because the first incident injuries materially contributed to them. They therefore “arose out of” and “resulted from” that incident.
[8] Ozcan at [16].
While the Court of Appeal in Ozcan did not express a concluded with respect to the correctness of the decision in Department of Juvenile Justice v Edmed [9] it is evident that
[9] [2008] NSWWCCPD 6; (2008) 7 DDCR 288
s 322(2) of the 1998 Act must be read more widely than as it was applied by the Deputy President in Edmed.
It is evident from the available treating medical evidence that the applicant’s right shoulder continued to deteriorate following the initial nature and conditions injury (with the 2010 deemed date). Such a conclusion is supported by the applicant’s own evidence and the history of complaints and treatment she had recorded. There was never a complete recovery at the right shoulder and from a common sense perspective the earlier injuries to the right shoulder, in the absence of complete recovery, must have made a material contribution to the further injury leading to surgery and incapacity in 2019.
I am satisfied, applying the principles in Ozcan, that the earlier injury of 2 February 2010 materially contributed to the later condition in the right shoulder and that later condition therefore arose out of and resulted from the 2 February 2010 injury. On this basis, the original injury of 2 February 2010 and the further injury to the right shoulder and consequential left shoulder injury should be referred to the Medical Assessor with a date of injury of 2 February 2010 as both injuries result out of the 2 February 2010 injury.[10]
[10] Section 322(2) of 1998 Act;

SUMMARY

The applicant sustained a further aggravation injury to her right shoulder and a consequential condition to her left shoulder with a deemed date of injury of 5 December 2019.
The further injury arose out of the first injury with a deemed date of injury of 2 February 2010.
For the purpose of assessing permanent impairment the injuries from 5 December 2019 and 2 February 2010 should be assessed together. As the 5 December 2019 injury arises out of the 2 February 2010 injury, 2 February 2010 will be the date of injury for the referral to the Medical Assessor
The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in accordance with the Certificate of Determination.

[2024] NSWPIC 656

28 November 2024