Kerr v Australian Unity Home Care Service Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kerr v Australian Unity Home Care Service Pty Ltd [2023] NSWPIC 541
APPLICANT:	William Roberts Kerr
RESPONDENT:	Australian Unity Home Care
MEMBER:	Cameron Burge
DATE OF DECISION:	16 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for cost of surgery to left shoulder and neck; fact of injury accepted; need for surgery accepted; only issue in dispute is the correct date of injury and which period of risk between two insurers the relevant injuries fell under; Held – the injuries are in the nature of the aggravation of a disease process; section 16(1); in accordance with section 16(1), the correct deemed date of injury is the date of incapacity; in this matter, the evidence discloses the applicant was first incapacitated for work on a date when the respondent was self-insured, namely 1 December 2020; respondent as self-insurer ordered to pay the costs of and incidental to the surgery to the applicant’s left shoulder and the proposed surgery to the applicant’s cervical spine.
DETERMINATIONS MADE:	The Commission determines: 1. Leave is granted to amend the injury description at (c) under the heading “Injury Details” in the Application to Resolve a Dispute by deleting the current words and substituting “18 May 2020 - when required to use a hoist - injuring his neck and right shoulder”. 2. Leave is granted to amend the Application Resolve a Dispute to claim a general order for medical and treatment expenses pursuant to s 60 of the 1987 Act in relation to the applicant’s cervical spine, and to claim a specific order that the surgery carried out by Dr Jaeger to the applicant’s cervical spied on 16 September 2022 was reasonably necessary as a result of a workplace injury. 3. Leave is granted to claim a general order in relation to medical and treatment expenses to the applicant’s left shoulder and to claim an order that the proposed surgery to the applicant’s left shoulder recommended by Dr Jansen is reasonably necessary as a result of a workplace injury. 4. The applicant suffered injuries to his cervical spine and left upper extremity (shoulder) in the course of his employment with the respondent, with a deemed date of injury on 1 December 2020. 5. At the deemed date of injury, the respondent was relevantly self-insured. 6. The cervical spine surgery which the applicant underwent on 16 September 2022 at the hands of Dr Jaeger and the proposed left shoulder surgery are reasonably necessary as a result of the applicant’s injury. 7. The respondent is to pay the costs of and incidental to the surgery referred to in (3) above. 8. The respondent is to otherwise pay the applicant’s medical and treatment expenses in relation to his cervical spine and left shoulder injuries, including the costs of and incidental to the proposed left shoulder surgery recommended by Dr Jansen.

STATEMENT OF REASONS

BACKGROUND

This matter falls within the lamentable category of cases where two insurers, standing behind the same employer, are unable to agree on the date on which accepted injuries to Mr William Roberts Kerr (the applicant) took place. The only issue for determination in these proceedings is the correct date of injury to be ascribed to injuries to the applicant’s cervical spine and left shoulder. There is no question the injuries took place in the course of the applicant’s employment with the respondent, Australian Unity Home Care.
The respondent was insured for workers’ compensation purposes by EML up to 30 June 2020. From 1 July 2020, the respondent was self-insured.
As noted, there is no issue the applicant suffered injuries to his cervical spine and left shoulder in the course of his employment with the respondent. At the hearing, each insurer also conceded the surgery to the applicant’s cervical spine and the proposed surgery to his left shoulder were medically necessary as a result of an injury.
Nevertheless, a dispute was maintained as to the proper date of injury, be it either a frank injury or one in the nature of a disease process with a deemed date. The inability of the parties to agree on this question meant the matter proceeded to hearing, while an applicant who everyone agrees requires serious surgery for an accepted workplace injury is forced to wait for that necessary treatment because the insurers standing behind his former employer are unable to agree as to which of them is liable to pay for the cost of the surgery.
There is no issue the applicant commenced employment with the respondent in or about 2009. He claims his injuries are in the nature of a disease process either brought about or aggravated by the nature and conditions of his employment.
There is also no issue that one of the insurers which indemnified the respondent will be responsible for payment of the costs of the applicant’s surgery. Given this is the case, the applicant did not submit a given date which ought to be applied, but rather relied on the disease provisions pursuant to s 16 of the Workers Compensation Act 1987 (the 1987 Act).
EML, which was relevantly on risk between 28 July 2016 and 30 June 2020 supported the applicant’s position in relation to the nature of his injuries. The respondent as self-insurer submitted the applicant’s injuries were brought about by a series of frank injuries which took place during the period EML was on risk, rather than being due to the nature and conditions of his employment, or in the alternative, if they were in the nature of a disease process, the correct deemed date fell within the period of EML’s risk.

ISSUES FOR DETERMINATION

The only issue in dispute in these proceedings is the correct date of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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 applicant was represented by Mr Andrew Parker of counsel and instructed by Ms Shain. The respondent in the interests of EML was represented by Mr Perry of counsel instructed by Mr Xu. The respondent as self-insurer was represented by Mr Robison of counsel instructed by Mr Van der Hout.
At the commencement of the hearing, Mr Parker sought leave to amend the description of injury set out in the pleading section of the Application to Resolve a Dispute (the Application). That amendment was not objected to, and accordingly, leave was granted to amend the injury description at (c) under the heading “Injury Details” to read “18 May 2020 - when required to use a hoist - injuring his neck and right shoulder.” The pleading as previously set out, listed an injury to the left shoulder.
Leave was also granted without objection to amend the Application to claim a general order for medical and treatment expenses pursuant to s 60 of the 1987 Act in relation to the applicant’s cervical spine, with a specific finding that the surgery carried out by Dr Jaeger to the applicant’s cervical spied on 16 September 2022 was reasonably necessary. Leave was also granted without objection to claim a general order in relation to medical and treatment expenses to the applicant’s left shoulder with a declaration be proposed surgery to the applicant’s left shoulder is reasonably necessary.
The respondent withdrew any defence relying on ss 254 and 261 of the Workplace Injury Management and Compensation Act 1998 (the 1998 Act).
Additionally, each insurer appropriately conceded at the hearing that each of the cervical spine surgery and the proposed left shoulder surgery were reasonably necessary for the applicant as a result of an injury suffered in the course of his employment with the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply lodged in the interests of EML and attached documents;
(c)    Reply lodged in the interests of the respondent as self-insurer and attached documents, and
(d)    Application to Admit Late Documents (AALD) lodged in the interests of EML on 1 September 2023 and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Discerning the correct date of injury.

On balance, I find the applicant’s injuries to the cervical spine and left shoulder are diseases of gradual process suffered as a result of the nature and conditions of his employment. The respondent as self-insurer argued the applicant’s injuries were a series of frank injuries.
The applicant’s treating surgeon AP Jaeger provided an opinion regarding the cervical spine to the applicant’s GP Dr Liang dated 6 November 2020. In that report, AP Jaeger said:
“William is a pleasant 66 yo gentleman who developed right upper limb pain radiating from the neck, over the shoulder and into the upper arm in relation to a work injury on 30/12/19. He works in disability care and was lifting/moving heavy clients. The pain initially improved, but unfortunately deteriorated again in relation to his work activities in May this year. Since then, he has not had any improvement, and the pain continues to affect him. It travels from the neck, over the shoulder and into the upper arm, not below the elbow. He can have paraesthesiae in the same location. He has subjective right arm weakness. He is right hand dominant. He has undertaken conservative treatment with Justin Castelli at Hands on Health without much benefit. He currently takes analgesia as needed…
CT scan of the cervical spine from IRG in 05/2020 showed multi-level degenerative changes, but the culprit is likely a right C4/5 disc herniation with compression of the CS nerve root.
I discussed with William that his symptoms are quite compatible with a cervical nerve root compression issue affecting the No 5 nerve root. The CT scan from May certainly supports this diagnosis and he requires an MRI scan of the cervical spine to complete the diagnostic work up. I have given him a referral and would like to see him again with the results.”
Dr Davies, IME for the applicant, provided the following diagnosis in his report dated 9 April 2021:
“He has suffered soft tissue injuries to his shoulders as a consequence of the nature and condition of his employment. He has aggravated pre-existing degenerative change in the cervical spine. Based on the history and documents, he may have developed some disc bulging at the C4/5 at the time of onset of his initial symptoms in the right upper limb, soon after he began working with the overweight resident named Adam.
On the balance of probability, the nature and conditions of his employment around 18 May 2020, further aggravated pre-existing degenerative changes in the cervical spine and led to enlargement of the disc protrusion at C4/5.”
When specifically asked whether the applicant suffered an aggravation of underlying conditions in his cervical spine, Dr Davies stated:
“His condition represents a nature and conditions of employment type injury, together with a frank incident on 18 May 2020.
His investigations show evidence of underlying degenerative change in the lower cervical spine and that has been aggravated by the nature and conditions of his employment, leading to development of a disc protrusion at C4/5, that probably enlarged further as a consequence of the incident in May 2020. His employment with Australian Unity is the main contributing factor to the aggravation of a pre-existing condition.”
Dr Davies maintained that position in his report dated 13 September 2021.
Both Mr Parker for the applicant and Mr Perry in the interests of EML noted the applicant’s symptoms came on gradually and worsened over time as a result of his employment, and there were instances of specific aggravations in the course of his employment.
For the respondent as self-insurer, Mr Robison argued the applicant’s shoulder injury came about as a result of pushing a bin on 28 July 2016. He took the Commission to a number of documents which referred to “the incident” including the applicant’s claim form.
The self-insurer’s argument was put on three bases. The first was that there were three frank injuries which caused the applicant’s condition as opposed to the nature and conditions of his employment generally.
Secondly, in the event there was a finding of a disease process either brought about or aggravated by the nature and conditions of employment, Mr Robison submitted the correct date of injury is 30 December 2019, being a date of acceptance of liability by iCare of a right shoulder injury to which the left shoulder was a consequential condition.
The third option Mr Robison submitted was the injury was a disease process with a date of injury to be determined in terms consistent with s 15 or 16 of the 1987 Act. The self-insurer submitted that on this basis, the correct date of injury would be 12 February 2020 when the applicant had a steroid injection to his right shoulder, and as a result EML would be liable for the injury. Mr Robison submitted that with the claim being for medical expenses pursuant to s 60, the correct deemed date of injury is indistinguishable from that which would relate to a claim for weekly benefits and the date of incapacity would be the relevant date.
Mr Robison also submitted that, having accepted liability with respect to the right shoulder, the respondent in the interest of EML was estopped from arguing it was not liable for the left shoulder surgery and cervical spine. Mr Perry, however, noted there was no estoppel in this matter as the right shoulder is not the injury in issue, noting the surgery sought is for the left shoulder. As Mr Parker noted, the important issue is where the relevant medical evidence lies. He submitted the self-insurers’ submissions were not supported by the medical evidence.
Mr Perry submitted the circumstances of this injury fit within the definition of s 16 of the 1987 Act, namely an aggravation of a disease process. Section 16 (1)(a)(i) notes that where there is an injury in the nature of an aggravation, it shall be deemed to have happened at either the time of the worker’s death or incapacity, and in this matter, that date is 1 December 2020. I accept that submission.
Dr Deshpande provided a report dated 23 August 2022 in the interests of EML. The doctor noted that despite the specific right shoulder incident on 30 December 2019, the applicant had been suffering shoulder pain before that date, consistent with a work related aggravation of an underlying condition. In a later report dated 17 November 2022, Dr Deshpande opined the cervical spine symptoms were due to temporary aggravation of pre-existing disc degeneration. Although Dr Deshpande said the aggravation has ceased, I note that is no longer a live issue in these proceedings, as both insurers accept the requirement for surgery arises from a work related injury.
In my view, the preponderance of the medical evidence in this matter supports a finding the applicant suffered injury to his left shoulder and cervical spine by way of aggravation to underlying degenerative processes. Although there were specific incidents, the applicant has recounted repeated heavy duties and symptoms in the affected body parts over time, not only when the specific events took place. As Dr Deshpande noted, the complaints of left shoulder pain predated the specific incident on 30 December 2019, while the nature of the pathology in the applicant’s cervical spine, namely underlying degenerative changes which became symptomatic over time, is clearly consistent with an injury which falls within s 16(1) of the 1987 Act.
Having categorised the injury as one which falls under s 16, it is necessary to then determine the deemed date of injury. Section 16 relevantly provides:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Mr Robison submitted if the Commission found a deemed date of injury was applicable, it would fall on a date of incapacity when EML was on risk, namely either 30 December 2019 or on 12 February 2020 when the applicant’s GP issued medical certificates. However, the difficulty with that submission is the applicant continued in his employment and at the same hours until 1 December 2020, a date on which the self-insurer was on risk. Up until that time, the applicant was certified as being fit for work for 6 hours per day, 6 days per week, identical to his pre-injury hours.
Accordingly, I find the correct deemed date of injury to the applicant’s left shoulder and cervical spine falls on 1 December 202, a date on which the self-insurer was on risk.
There being no issue between the parties as to the medical necessity of both the left shoulder and cervical spine surgery and having found that both the neck and left shoulder injuries are part of the same disease process, it follows that the respondent in the interests of the self-insurer will be liable for the costs of an incidental to. The reasonably incurred medical expenses arising from both affected body systems, and in particular the surgery to the cervical spine and to the left shoulder.
Accordingly, the Commission will order that the applicant relevantly suffered injuries to his cervical spine and left shoulder in the course of his employment with the respondent in the interests of the self-insurer on 1 December 2020, and that the respondent in the interest of the self-insurer will be ordered to pay the applicant’s reasonably necessary medical and treatment expenses including the surgery to the cervical spine and the proposed surgery to the left shoulder.

[2023] NSWPIC 541

16 October 2023