Henneberry v Duromer Products Pty Ltd
[2023] NSWPIC 148
•11 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Henneberry v Duromer Products Pty Ltd [2023] NSWPIC 148 |
| APPLICANT: | Graham Henneberry |
| RESPONDENT: | Duromer Pty Ltd |
| Member: | Stephen Churches |
| DATE OF DECISION: | 11 April 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation for injuries to the left upper extremity (shoulder) and a consequential injury to the right upper extremity (shoulder); question of what is the date of injury suffered by the applicant; Held – the applicant injured his left shoulder on 14 January 2008 and again on 18 December 2015 and from then suffered a consequential condition to his right shoulder; the applicant contends the date of injury is 18 December 2015 and the respondent contends it is 14 January 2008; finding for the respondent. |
| determinations made: | The Commission determines: 1. The date of injury to the applicant’s left upper extremity (shoulder) and right upper extremity (shoulder) is 14 January 2008. 2. The matter be referred to the medical appeal panel to determine the medical appeal lodged. |
STATEMENT OF REASONS
BACKGROUND
Both parties have agreed the Medical Assessor made an error in the assessment relating to a deduction of one half on account of further deterioration of the appellants’ condition after
14 January 2008.An appeal has been lodged to a medical appeal panel.
There is no dispute the applicant injured his left upper extremity on 14 January 2008 when pouring two, 15 litre buckets of water into a compressor machine.
The applicant underwent some injections into his left shoulder.
He says he was on off week for about a week and was then on light duties, but his duties were gradually increased and he then continued working his normal duties.
The applicant’s evidence is that his left shoulder did improve but was never completely back to normal.
On 18 December 2015 the applicant was delivering components of a jet cleaner to a site when he had to manually unload the components and he again felt severe pain and discomfort in his left shoulder.
He underwent surgical repair of his left shoulder on 16 August 2016.
In early 2018 the applicant suffered gradual onset of right shoulder pain which was accepted by the respondent as a consequential condition.
He underwent surgery to the right shoulder on 18 June 2018.
The applicant was unable to work after the surgery to the left shoulder in 2016.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) the date of injury suffered by the applicant.
Matters previously notified as disputed
The date of injury suffered by the applicant.
Matters not previously notified
None.
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 have agreed to the determination of the matter without a conference or formal hearing.
DOCUMENTARY EVIDENCE
The application to resolve a dispute (the application and attachments), the Reply and attachments, the appeal to the medical panel and attached documents and the notice of opposition to the appeal and attached documents.
ORAL EVIDENCE
There was no oral evidence at the preliminary conference.
FINDINGS AND REASONS
The applicant’s evidence is that he lodged a workers compensation claim (the date has not been disclosed) as a result of his injury in 2008 and was paid weekly payments of compensation up to 13 January 2021.
Dr James Bodel examined the applicant on behalf of his solicitors in June 2017. Dr Bodel was of the view
“the second episode of injury on 18 December 2015 caused a complete full thickness tear of that same rotator cuff and after that he needed to consider the surgery which has been done.”
Dr Bodel further opined “the diagnosis here is a rotator cuff tear of the left shoulder caused by the injuries at work”.
He further opined
“The initial injury in 2008 was a partial thickness tear of the supraspinatus tendon which settled with appropriate care and an injection of local anaesthetic and hydrocortisone. The shoulder was never entirely normal but he was able to do his normal work.”
Dr Bodel further examined the applicant on 29 September 2020. In that report he noted in relation to the left shoulder “That it was quite good but never entirely normal and he continued with his normal work activities then until the recurrence of the injury some 8 years later”.
He later notes “this gentleman suffered injuries to both shoulders in the incident that occurred at work on 18 December 2015. The injury to the right shoulder is a consequential injury.”
He further stated
“the injury to the left shoulder was caused by a specific event at work while lifting a bucket full of various component parts into the back of a utility. The nature and conditions of his work in general was also contributing to the overall underlying pathology in the region of the left shoulder and that has contributed to the development of the shoulder pathology on the right side. There has in part been aggravation acceleration, exacerbation and deterioration process in both shoulders and work in the main contributing factor to that aggravation, acceleration exacerbation and deterioration in each shoulder.”
Dr Silva examined the applicant on behalf of the respondent on 3 July 2019 and 7 April 2021. He has recorded the date of injury as 14 January 2008. In his report of 19 April 2021 he opined
“the original injury was on 14.1.2008, listed in my first report and the subsequent right shoulder pain came on after overusing the right shoulder whilst nursing the left shoulder. They are all related to the original injury of 14.1.2008.”
SUBMISSIONS
The applicant says the date of injury shoulder be 18 December 2015 as a result of nature and conditions. He relies upon his submissions to the medical appeal panel.
The respondent also relies upon its submissions to the medical appeal panel and there is no need for me to repeat either.
CONCLUSIONS
The application to resolve a dispute is somewhat confusing in that it claims an injury due to a disease occurring on 18 December 2015, yet claims lump sum compensation due to an injury on 14 January 2008 to both the left and right upper extremity.
Dr Bodel identifies injuries on both dates and in passing mentions nature and conditions of employment which has never been pleaded.
He does however note that the injury in 2008 caused a partial thickness tear in the left shoulder which responded to treatment. Further the second injury in 2015 caused a full thickness tear of the left shoulder.
It then appears the consequential injury to the right shoulder became apparent. There is no dispute that it is a consequential injury.
The respondent relies upon Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56. It says that the second injury in 2015 falls into the second class of injuries in State Government Insurance Commission v Oakley (1990) 10 MVR 570.
It is clear from the reports of Dr Bodel that the incident in 2015 exacerbated the injury to the left shoulder, thereby causing the need for the surgery to the left shoulder and indeed to the right shoulder at a later date.
There is no evidence to show that the injury to the left shoulder or even part of it would have occurred even if the original injury had not occurred.
The same can be said for the consequential injury to the right shoulder.
In my view the second injury “resulted from and arose out of the first injury” using the terms in Ozcan.
SUMMARY
The date of the injury suffered to the applicant’s left upper extremity (shoulder) and the right upper extremity (shoulder) is 14 January 2008.
The matter is to be referred to the medical appeal panel for determination of the medical appeal lodged.
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