Konakas v Luxottica Retail Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Konakas v Luxottica Retail Australia Pty Ltd [2023] NSWPIC 290
APPLICANT:	Diana Konakas
RESPONDENT:	Luxottica Retail Pty Ltd
Member:	Brett Batchelor
DATE OF DECISION:	20 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation as a result of three incidents of injury which occurred in the course of the applicant’s employment with the respondent, the occurrence of which was not in issue, and a condition consequent upon injuries sustained in those three incidents; the claimed consequent condition occurred when the applicant fell while descending stairs at home suffering significant injuries; claim also for weekly benefits compensation as a result of injuries sustained in the second two of the three incidents not in issue; Held – finding that the condition which occurred when the applicant fell at home descending stairs was consequent upon the second two of the three incidents of injury not in issue; finding in respect of the injuries the subject of the consequent condition to be referred to a Medical Assessor (MA) for assessment; matter W1613/23 referred to MA for assessment of permanent impairment as a result of injury sustained in the second two of the incidents of injury not in issue, and the condition sustained in the fall at home while descending stairs; matter W1654/23 (ordered to be heard with matter number W1613/23) referred to MA for assessment of permanent impairment as a result of injury sustained in the first of the three incidents of injury the occurrence of which was not in issue; matter W1613/23 to be referred back to the Personal Injury Commission for the determination of outstanding issues after issue of the Medical Assessment Certificate(s) and expiration of the appeal period in respect of such certificate(s).
determinations made:

The Commission determines:

The applicant sustained a condition on 7 July 2013 consequent upon injuries sustained on 13 December 2912
Matter number W1613/23 is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the cervical spine, thoracic spine, right upper extremity and left upper extremity on 13 December 2012 (two incidents) and the consequential condition suffered on 7 July 2013, such incidents to be assessed together.
The documents to be referred to the Medical Assessor are:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 17 March 2023 lodged by the applicant with Certificate of Capacity dated 17 March 2023 attached;
(d)    Application to Admit Late Documents dated 11 May 2023 lodged by the applicant and attachments commencing with the “Income Tax Material sent to Gair Legal – 16.08.’19”;
(e)    applicant’s List of Experts’ Reports referenced to page numbers in Commission’s Electronic Records;
(f)    Application to Admit Late Documents dated 17 May 2023 lodged by the respondent with expert medical reports attached;
(g)    Application to Admit Late Documents dated 25 May 2023 lodged by the applicant with Certificate of Capacity issued by Dr Costa dated 21 May 2023 attached, and
(h)    this Certificate of Determination and Statement of Reasons.
Matter number W1654/23 is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the cervical spine, thoracic spine and left upper extremity on 1 May 2010.
The documents to be referred to the Medical Assessor are:
(a) Application to Resolve a Dispute and attached Documents, and
(b) Reply and attached documents.
The matter is referred back to the Personal Injury Commission for the determination of outstanding issues after issue of the Medical Assessment Certificate(s) and expiration of the appeal period in respect of such certificate(s).

STATEMENT OF REASONS

BACKGROUND

Diana Konakas (the applicant/Ms Konakas) commenced work for Luxottica Pty Ltd (the respondent) as an optical dispenser in 1993. She was involved in three accidents in the course of that employment, a relatively minor one on 1 May 2010 when she fell in a carpark, and two on the same day, 13 December 2012. In the first of those two on 13 December 2012 the applicant was sitting in a chair in the tea room/back room of the respondent’s premises when a stack of drawers fell on her, with the top drawer striking her right shoulder. Ms Konakas claims that she felt severe pain in her right shoulder, the right side of her neck, and in her right upper limb. In the second incident on that day, the applicant was struck by a computer and screen which fell from a top shelf and struck her in the middle of the base of her skull down the middle of her back.
The applicant prepared an incident report which was completed by her employer and forwarded to its then insurer, CGU, on 14 December 2012.
The insurer accepted liability for the three incidents but raises issues as to the extent of the injuries suffered by the applicant in the two incidents on 13 December 2012.
Following the two incidents on 13 December 2012 the applicant returned to work, and as at 7 July 2023 was engaged in restricted suitable duties working 20 hours a week, compared to the 38 hours a week she was working in the period leading up to 13 December 2012.
On 7 July 2013 Ms Konakas suffered significant injuries when she fell when descending stairs at her home. She claims that because of ongoing problems with her neck and upper back she was having real difficulty looking downwards, was not able to see the steps properly, and where she was putting her feet. She lost her balance and footing, and fell over the balcony railing after having fallen down three steps. She landed awkwardly on the ground about two metres below.
The applicant was conveyed to St George Hospital by ambulance, admitted via the Emergency Section, and remained in hospital until 21 July 2013. On admission Ms Konakas complained of pain to her left hand, left clavicle, her neck and back. She had sensory changes to the left hand medial nerve suggesting nerve impingement.
The injuries suffered by the applicant as recorded in the Discharge Referral Note of the Hospital were:
(a)    subgaleal haematoma over the right occipito-parietal region;
(b)     comminuted fracture through C2 vertebral body with anterior displacement;
(c)    a non-displaced fracture through the left C7 transverse process and pedicle;
(d)    a comminuted fracture through the C6 spinous process with posterior displacement;
(e)    a T3 crush fracture;
(f)    a T4 and T5 crush fracture with anterior displacement;
(g)    a minimally displaced fracture through the right T1,T2 and T3 transverse process;
(h)    a displaced T2 and T3 transverse fracture;
(i)    a midshaft left clavicle fracture with anterior and medical displacement;
(j)    a non-displaced fracture of the manubrium, and
(k)    left lunate dislocation shown on X-ray.[1]
[1] Application to Resolve a Dispute (ARD) in matter number W1613/23 pp 44-50, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
AAI Limited trading as GIO (GIO) issued to the applicant three notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), all of which contained a denial of liability for the injuries sustained by the applicant on 7 July 2013, claimed by the applicant to be consequent upon the injuries sustained in the two incidents of 13 December 2012, and the incident of 1 May 2010. GIO also placed in issue the extent of injury suffered by Ms Konakas on 13 December 2012, conceding injury to the neck, right shoulder and right wrist, but denying any injury to the thoracic spine, left shoulder, left elbow and/or left wrist.
The three s 78 notices are dated 8 August 2019[2], 22 November 2019[3], and 18 January 2022.[4]
[2] Reply in W1613/23 p 14.
[3] Reply in W1613/23 p 20.
[4] Reply in W1613/23 p 29.
The applicant commenced two sets of proceedings in the Commission numbered W1613/23 in respect of the injuries sustained on 13 December 2012 and consequential injuries claimed to have been suffered on 7 July 2013, and W1654/23 in respect of injury on 1 May 2010. On 10 March 2023 the Commission made an order pursuant to rule 64(2) of the Personal Injury Commission Rules 2021 that proceedings in W1613/23 were to be dealt with concurrently with proceedings in W1654/23, and that the consolidated proceedings were to proceed under number W1613/23.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant sustain injury to the thoracic spine, left upper extremity (shoulder, elbow and/or wrist) as a result of the work incidents on 13 December 2012?
(b)    Had the applicant recovered from the effects of any injury sustained in the two work incidents on 13 December 2012 by the time of the fall on 7 July 2013?
(c)    Did the applicant sustain a condition on 7 July 2013 consequent upon injuries sustained in the two incidents on 13 December 2012 and the incident of 1 May 2010?
(d)    If answer to (c) is “yes”, what injuries/condition should be referred to a Medical Assessor for assessment of whole person impairment (WPI) as a result of injury on 13 December 2012 and injury on 1 May 2010?
(e)    If answer to (c) is “no”, what injuries should be referred to a Medical Assessor for assessment of WPI as a result of injuries on 13 December 2012?
(f)    What body parts should be referred to a Medical Assessor as a result of injury on 1 May 2010?
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration on 24 May 2023. Mr Davis of counsel appeared for the applicant briefed by Mr Ramsay. The applicant attended. Mr Combe of counsel appeared for the respondent briefed by Ms Nambour.
Arbitration hearing did not commence on that day, and the parties were directed to lodge and serve written submissions, the last day for which was 15 June 2023. These submissions have been received and are summarised hereunder.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents – W1654/23 (in respect of the incident of 1 May 2010);
(b)    ARD and attached documents – W1613/23 (in respect of the incidents of 13 December 2012 and the fall down the stairs of 7 July 2012);
(c)    Reply and attached documents – W1654/23;
(d)    Reply and attached documents – W1613/23;
(all of the following documents lodged in matter number W1613/23)
(e)    Application to Admit Late Documents (AALD) dated 17 March 2023 lodged by the applicant with Certificate of Capacity dated 17 March 2023 attached;
(f)    AALD dated 11 May 2023 lodged by the applicant and attachments commencing with the “Income Tax Material sent to Gair Legal – 16.08.’19”;
(g)    applicant’s List of Experts’ Reports referenced to page numbers in Commission’s Electronic Records;
(h)    AALD dated 17 May 2023 lodged by the respondent with expert medical reports attached;
(i)    AALD dated 25 May 2023 lodged by the applicant with Certificate of Capacity issued by Dr Costa dated 21 May 2023 attached;
(j)    applicant’s written submissions dated 31 May 2023;
(k)    respondent’s written submissions lodged 8 June 2021, and
(l)    applicant’s submissions in reply dated 13 June 2023.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

Applicant

The applicant notes the two sets of proceedings she commenced, W1654/23 in respect of the incident of 1 May 2010, and W1613/23 in respect of the incidents of 13 December 2012 and the fall down the stairs of 7 July 2012.
The applicant places most, if not all, weight upon the injuries suffered in the incidents of 13 December 2012 as being the cause of her impairment and incapacity following the fall on 7 July 2013. The applicant notes that her claim in respect of the first incident on 1 May 2010 is commenced by way of completeness such that if any determination is made attributing loss to that injury, it may then be assessed.
The applicant notes that there is no real issue in respect of the factual background to each of the incidents on 1 May 2010 and 13 December 2012. The issue between the parties is as to the cause of her fall down the stairs on 7 July 2013 and whether that is as a consequence of the injuries suffered on 13 December 2012.
The applicant refers to her four statements, and notes that no application was made to cross-examine her. The latest statement dated 21 April 2012 at [27]-[31] sets out the hours she worked.[5] Ms Konakas notes that after the 2010 injury she returned to working full time and was doing so immediately prior to 13 December 2012. During this time, her general practitioner was Dr Iskander whose notes are in evidence.[6] The 2010 fall is recorded in the clinical notes as is the attendance on Dr Iskander on 14 December 2012 relating to events the day before.
[5] AALD 11 May 2023 p 188.
[6] ARD W1613/23 p 4 (applicant’s statement 20 December 2012 at [16]) and pp 243 and 248 (clinical notes).
The applicant submits that while the clinical notes record various attendances, they are not supportive of any significant complaint prior to December 2012. The insurer made no payments for treatment of rehabilitation beyond January 2011. Ms Konakas was certified fit for pre injury duties on 23 December 2010.
The applicant submits that after the 2012 accident(s), she was absent from work for a period of time, prior to returning to work on restricted duties only. At no time did she return to work full time or on her usual duties, and as at May and June 2013 she was certified as fit for only 20 hours a week, with the restricted duties including the need to avoid bending, twisting and squatting, due to ongoing symptoms.[7]
[7] AALD 25 May 2023 p 5.
The applicant submits that as at 7 July 2013 she had significant restrictions on her ability to tilt her head in a downwards fashion, and that there is no evidence to the contrary.[8] Ms Konakas states that on that day her neck was especially stiff and that it was difficult to look down.[9]
[8] ARD W1613/23 p 11 (applicant’s statement 19.10.’22 at [15]-[16]).
[9] ARD W1613/23 p 11 (applicant’s statement 19.10.’22 at [20]-[23]).
The applicant submits that as a result of the July 2013 fall she was transported to hospital by ambulance and noted to have suffered a multitude of injuries which have resulted in significant ongoing difficulties. She has not returned to employment since the fall.
The applicant relies on the reports of Dr Con Costa, a public health physician and occupational health consultant, who treated her from 20 May 2013, prior to the fall in July 2013. Dr Costa attributes the fall to the incidents of December 2012, and discounts the 2010 incident.
The applicant also relies on the opinions of Dr Patrick, general, vascular and trauma surgeon, who first independently medically examined her on 4 June 2013 and subsequently, and provided a number of reports thereafter. The applicant submits that Dr Patrick, more than most, engages with the complex issues in her case, and is to be commended for his ultimate conclusions in which he provides a detailed reasoning process and accepts change to his original opinions. The applicant submits that this is to the doctor’s credit that he is willing to carefully consider material and justify his reasoning and change of opinion, such as there is any real change.
The details of the reports and opinions of Dr Costa and Dr Patrick are considered hereunder.
The applicant also discusses the reports of Dr Vijay Panjratan and Dr Stephen Rimmer, orthopaedic surgeons, who independently medically examined her on behalf of the respondent, and provided reports. These are also considered hereunder.
The applicant refers to the records of Dr Pham, vitreoretinal surgeon, contained within the respondent’s bundle of reports[10] and says that the relevance of those records is unclear. No claim is made in respect of loss of vision.
[10] AALD (respondent) 17 May 2023 from p 19.
The applicant submits that the principles of causation of the consequential injury from which she suffers are relatively settled, and stem from Kooragang Cement Pty Ltd v Bates.[11] It is submitted that the July 2013 accident was a direct consequence of the injuries of December 2012. The causal chain has not been broken. Causation is a question of fact.
[11] (1994) 35 NSWLR 452 (Kooragang Cement).
The applicant also relies on the observations of the Chief Justice said in State Government Insurance Commission v Oakley,[12] when his Honour identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury.
[12] (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 (Oakley).

Respondent

The respondent notes that the significant dispute in the matter is the claim that injury sustained on 7 July 2013 was a consequential condition as a result of the accepted injuries of 13 December 2012. The respondent quotes relevant portions of, and relies on, s 78 notices dated 8 August 2019, 22 November 2019, and 18 January 2022.
In the s 78 notice dated 8 August 2019 GIO stated that liability was initially accepted in respect of an injury sustained to the applicant’s neck, right shoulder and right wrist as a result of two separate incidents at work on 13 December 2012. It is disputed that Ms Konakas sustained any injury to the thoracic spine, left shoulder, left elbow and/or left wrist as a result of the work incidents on 13 December 2012.
In the s 78 notice dated 22 November 2019 GIO stated that liability was initially accepted in respect of the applicant’s allegation of injury sustained in a fall at work on 1 May 2010, but concluded that she had recovered from the effects of any injury sustained in that incident. GIO disputed liability in relation to any allegation of Ms Konakas sustaining a consequential injury as a result of an incident at home on 7 July 2013, consistent with a dispute notice issued pursuant to s 74 of the 1998 Act dated 12 December 2013. GIO referred to the opinion of Dr Panjratan, expressed after his examination of the applicant on 3 July 2019 and a review of all medical evidence on file. Dr Panjratan concluded that the applicant did not suffer from any WPI as a result of the work incident on 1 May 2010. GIO noted that Dr Panjratan further concluded that any WPI suffered by the applicant as a result of the incident at home on 7 July 2013 was unrelated to the applicant’s employment.
In the s 78 notice dated 18 January 2022 GIO referred to the previous examination of the applicant by Dr Panjratan who concluded that any incapacity suffered by the applicant and any need for treatment related to the significant incident at home on 7 July 2013, and that the injury at home was not a consequence of the work incidents on 13 December 2013. Dr Panjratan’s conclusion that the applicant did not suffer from any WPI as a result of the work incidents was noted, as was his opinion that any WPI suffered as a result of the incident at home on 7 July 2013 was unrelated to the applicant’s employment.
GIO noted that following the retirement of Dr Panjratan, and after the applicant had re-made her claim, an examination of the applicant and review of all medical evidence was arranged with Dr Rimmer. Dr Rimmer considered that the applicant’s incapacity related to the fall at home which not work related.

The respondent submits that the reliance of the applicant on Oakley is an error as that case is authority for causation at common law, whereas the test for causation in compensation with respect to consequential conditions is that in Kooragang Cement.
The respondent submits that the opinions of Dr Costa and Dr Patrick should not be accepted as they rely on the self-reporting and self-serving statements of the applicant. The respondent submits that Dr Patrick was incorrect to state “the likelihood is that there have been significant further injuries to the cervical spine on 13 December 2013”, which is entirely speculative and not borne out by any evidence. The respondent submits that any significant pathology (in the cervical spine) was detected after 7 July 2013. The respondent further submits that unless it is found there were “significant further injuries” on 13 December 2012, causation cannot be established on the applicant’s evidence. As there is no such evidence, the applicant’s claim must fail.
The respondent submits that the applicant’s claim that there is a consequential condition on 7 July 2013 should be dismissed with an award for the respondent.

Applicant’s submissions in reply

The applicant submits that references to and extracts of the s 78 notices by the respondent are merely references to determinations or assertions relied upon by an insurer to deny the claim. They do not constitute evidence or, of themselves, constitute any basis for the determination of the matter. The applicant submits that they do not, in the absence of cogent first hand evidence, provide a basis for a determination or take on any degree of correctness.
The applicant notes that Dr Panjratan provides two reports, both arising from the same examination. The first report dated 18 July 2019 and the second dated 5 August 2019. The second report does not reference the first report, the same documentation is reviewed and the reports appear to be identical except for the correction to the applicant’s age.
The applicant submits that there is a mischaracterisation of the second report of Dr Panjratan in the respondent’s submissions when it submits:
“In a second report and upon review of hospital records, Dr Panjratan again opined that ‘The subsequent injury at home in July 2013 is not related to the earlier incidents of 13/12/2012 and 01/05/201’”. (Emphasis in submissions.)
The applicant submits that it is not upon further review of hospital records. They were apparently available and reviewed on the first (and realistically only) report. It is merely a repeat of the earlier report with the one minor correction.
The applicant characterises as unhelpful the respondent’s submission at [6] that there is no clinical evidence in the material reviewed by Dr Panjratan of continued restrictions of movement of the neck such as to prevent the applicant being able to see the steps on 7 July 2013. That Dr Panjratan was not provided with clinical records is irrelevant, as he had the applicant’s complaints, various certificates of capacity (although these are not identified with precision) and histories in the reports of Dr Patrick. The applicant submits that what is apparent is that Dr Panjratan is simply wrong to characterise the injuries of December 2012 as soft tissue cervical injuries. In the history obtained by Dr Iskander, reference is also clearly made to the computer falling onto the upper back and neck, and mid-back symptoms again on 17 December 2012.
The applicant maintains that the relevance of the case of Oakley, noting that it has been referred to on several occasions by the Commission and accepted.[13]

FINDINGS AND REASONS

[13] See for example in matters addressing the requirement of an Appeal Panel – Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [129] and ongoing; Marsh v Newcastle Stevedores Pty Ltd [2022] NSWPICMP 1 and Mallon v Southern Cross Care (NSW &ACT) and Ors [2021] NSWPIC 434 at [257]-[260].

The applicant’s evidence

The applicant’s evidence appears in three statements dated 20 December 2012[14], a supplementary statement dated 28 March 2019,[15] and a further supplementary statement dated 19 October 2022.[16] There is also a third supplementary statement dated 21 April 2023 lodged as a late document on 11 May 2023.[17] That statement deals with the applicant’s treatment, ongoing problems, weekly payments/Centrelink, hours of work, and amendments and further comments on previous statements.
[14] ARD W1613/23 p 3.
[15] ARD W1613/23 p 8.
[16] ARD W1613/23 p 11.
[17] AALD 11 May 2023 p 189.
In the statement dated 20 December 2012 Ms Konakas relates a history of the incident in which she was involved on 1 May 2010 when she slipped and fell while pushing a trolley of rubbish in the course of her employment with the respondent, injuring her left arm and the left side of her face. From that time she consulted Dr Naghat Iskander, general practitioner in Arncliffe, who prescribed pain killing medication, and also Dr Christopher An, general practitioner of Bankstown.
The applicant provides a history of minor injuries she says that she sustained in a motor accident in the course of her employment on 18 October 2010. She says that the injuries were of no lasting effect and that she received no compensation payments.
The applicant says that following a consultation with Dr An and a rehabilitation officer appointed by the insurer CGU in late December 2010/early January 2011, it was decided by these two persons that she was “OK”, and that her case (in respect of the injury on 1 May 2010) would be closed.
The applicant says that during the period from late December 2010/December 2011 to date she continued to suffer pain and discomfort and other problems from injuries suffered including, relevantly:
(a)    reasonably constant pain, discomfort and gross restriction of movement of the neck (mainly left sided);
(b)    reasonably constant headache radiating from the left hand side of the back of the head over her head and into the left temple area, and on her skull behind her left ear;
(c)    difficulty turning her head from side to side because of left neck pain;
(d)    difficulty lifting her head up and down;
(e)    left shoulder pain (gross restriction of movement of the left shoulder), and
(f)    inability to lift the left arm above chest height due to pain.
The applicant says that notwithstanding the pain and disabilities she suffered she generally continued to work full time with some sick days and utilisation of holidays to rest and recuperate.
The applicant gives a history of the two incidents which occurred on 13 December 2012, when she was struck by the top drawer of a stack of drawers which fell about five feet and struck her on the right shoulder “…with great force”, causing her to feel severe pain in her right shoulder, the right side of her neck, her neck and right upper limb. Ms Konakas says that she “soldiered” through the day which was fortunately wasn’t very busy, but was in much pain.
Later that day Ms Konakas was involved in a further incident when a computer (mechanism and screen) fell from what she believes was a top shelf, just below the ceiling, striking her in the middle of the base of her skull down to her middle upper back. A claim form for the incident was completed and sent to CGU on 14 December 2012
In her supplementary statement dated 28 March 2019 Ms Konakas refers to the consultations she had with Dr Patrick at the request of her solicitors on 19 July 2016 and 3 May 2018, resulting in reports from the doctor dated 19 July 2016 and 31 May 2018. The applicant repeats in detail the “present symptoms” as conveyed by her to Dr Patrick in the consultation on 3 May 2018 and recorded in the report of 31 May 2018. The applicant then lists what she says are the pain, symptoms and disabilities from which she continues to suffer.
In her further supplementary statement dated 19 October 2022 the applicant makes reference to her two precious statements and says that following the workplace incident on 13 December 2012 she felt significant pain from the base of her skull to the middle of her back. She did not attend work the following day, and was away from work for some period. She recalls that she did attend the workplace for a period of time, mostly on reduced hours/part time as she was having ongoing pain and restrictions. Ms Konakas refers to attendances on Dr Iskander and the physiotherapist next door to Dr Iskander, who treated the base of her neck to her upper back, her right shoulder. She says that she did not experience much improvement in the pain and symptoms.
The applicant says that she can recall after the workplace accident that she had restrictions with being able to tilt her head in a downward fashion and from side to side, and that this restriction in her neck affected her ability to look down “…and was the cause of my fall at home in July 2013.”
In respect of the fall on 7 July 2013 Ms Konakas says:
“20. I can recall that on the day when I injured myself at home on 7 July 2013, I was on the first floor making my way down to the ground floor and I was attempting to use the outside stairs, which I did not usually do.
21.    I can recall that my neck was especially stiff that day and it was difficult to look down and I recall taking successfully taking the first two stairs and then I proceeded to lose my footing and fall quite heavily.
22.    In my opinion, it was my neck injury and restriction in my vision that caused me to fall down the stairs at home.
23.    I can recall holding the handrail on the right side, however I proceeded to lose my footing, flipped forward and landed upright against the wall.
24 . I can recall being in immediate pain and not being able to move.
25.    Thankfully I had my mobile telephone with me, and I called my neighbour who came to my assistance.”
Ambulances were called, and the applicant was transported to St George Hospital.
Later in the supplementary statement Ms Konakas makes reference to consultations she had with Dr Iskander between 14 December 2012 and 20 June 2013, quoting extracts from the doctor’s clinical notes.
Ms Konakas says that in the period after the December 2012 workplace injury, most things were difficult and that she was in constant pain. On many days she left work early, and on some days she did not go to work at all. She had difficulty in negotiating the stairs in her two-storey home, doing her shopping and house cleaning.
The applicant refers to the lack of improvement in her injury and symptoms after July 2013.

The applicant’s medical evidence

Dr Iskander

Dr Iskander’s handwritten clinical notes are in evidence,[18] relevant entries in which are as follows:
[18] ARD W1613/23 pp 242-277.
(a)    14 December 2012 “She had an accident at work a Bok ( ) [sic] fell onto her R shoulder and after which (as noted) a computer fell onto her upper back O/E NAD full ROM (illegible)”
(b)    17 December 2012 “Sore neck, mid-back & (illegible)
Referral for XR
M/C 16/12------22.12.12
Panadol osteo”
(c)    23 December 2012 “Still in pain
Repeat (illegible)
On Neurofen (? perhaps – illegible)
M/C 23/12 – 1/1/13”
There are further entries covering the period to 11 March 2013 containing reference to worsening pain, analgesia request for physio, and epigastric pain. On 11 March 2013 there is a report from Pip Lindholm of Arncliffe Physiotherapy as follows:
“After 5 days/20 hours work last week, Diana reports aching all over, frequent nausea +bilateral arm pain + neck pain +swelling forearms +anterior (? perhaps – semi illegible) elbows I feel that she has returned to work too early. Her symptoms have been aggravated.”
On 15 May 2013 Dr Iskander reported that the applicant was depressed and anxious and unfit from 16 to 18 May 2013, and on 18 May, tearful, unable to go to work, and had no approval for pain specialist.
On 19 June 2013 Dr Iskander reported “Severe back and muscular pain not related to her injury. On analgesics M/C 1/7.”

Dr Costa

There is a report from Dr Costa dated 23 February 2014 addressed to the applicant’s solicitors in evidence.[19] Dr Costa first saw Ms Konakas on 20 May 2013, and noted that the applicant reported injury at work on 13 December 2012, suffering injuries to the neck and right shoulder/upper limb, the back and the left hand. The doctor recorded a past history of work-related injury affecting mainly the left upper limb in 2010 with some chronic ongoing symptoms of the left shoulder and upper limb, but mainly some numbness in the left hand and feeling of the left upper limb being “swollen”. Dr Costa queried if this was a left sided thoracic outlet syndrome. The history received was that the applicant’s condition had improved and that she was relatively asymptomatic and coping with all activities of daily living. She had returned to full normal duties at work prior to the more recent work injury in December 2012.
[19] ARD W1613/23 p 64.
Dr Costa recorded that the applicant reported symptoms following the work injury in December 2012 included constant headache and chronic stiffness of the neck. She reported having continuous symptoms of the neck and upper back, and difficulty with prolonged sitting or when turning her head.
Dr Costa reviewed the applicant on 21 May 2013, when he reviewed all of the radiology including cervical spine and thoracic spine but no X-ray or ultrasound of the right shoulder which was not available at the time. At further review on 28 May 2013 it was noted that the applicant had returned to work 20 hours a week, which was not very busy. The radiology was again reviewed, and Ms Konakas was referred for ultrasound of the right shoulder and for MRI of the cervical spine. The insurer had denied liability for further physiotherapy.
There was a further review of the applicant with Dr Costa, representatives of the insurer, the case manager and employer on 25 June 2013. At that stage the plan of the doctor was continue with pain management including physiotherapy and exercises and weight loss.
Dr Costa then referred to the admission to St George Hospital following a fall, the treatment at the hospital including surgery, the contents of the Discharge Summary, and diagnoses of injuries sustained in the fall.
Dr Costa saw the applicant on 12 August 2013 and recorded in his report:
“I saw her on the 12th of August 2013 and she said she had fallen on the step and off the balcony and injuries to her upper back and neck. She said, ‘I went over the top.’ She said she could not look down because of her previous neck injury at work, and she did not see the step due to chronic neck pain and neck stiffness.”
Dr Costa continued to treat the applicant after 12 August 2013, including contact with a neurosurgeon who had reviewed the case with his colleagues. He noted the contents of a report of Dr Ghahreman, neurosurgeon, dated 30 August 2013, and continued to discuss the case with him.
Under “Opinion and Prognosis:” Dr Costa said:
“There are signs and symptoms referable to chronic neck strain and aggravation of underlying spondylotic condition including multiple IV disc lesions of the cervical spine and the upper back, chronic post contusional effects to the right shoulder and the right upper limb/ right wist. [sic]
The chronic headache and disequilibrium symptoms are probably related to the neck injury, i.e. chronic cervical migraine and cervical vertigo secondary to neck injury. The initial injuries resulted in stiff and sore neck and chronic pain and poor night sleep as well as some weight gain due to inability to exercise. Particularly secondary neck stiffness and difficulty turning her head side-to-side or to look up and down.
She suffered a further injury on the 8 June 2013 [sic] when she missed a step and fell off the rear balcony of her house falling around 3 metres and striking her head on the way down and landing on her upper back and shoulders including the left shoulder/ upper limb.”
Dr Costa has made an obvious error in respect of the date of the fall down the steps. However he does find that the applicant suffered a neck injury prior to the fall, causing secondary neck stiffness and difficulty turning the head side-to-side or to look up and down.
Dr Costa has provided a further updated report dated 23 June 2016.[20] For that report he was provided with a report of Dr Patrick dated 10 December 2014. Dr Costa reviewed the applicant’s progress and treatment, and the report of Dr Patrick.
[20] ARD W1613/23 p 77.
Under “Opinion and prognosis:” Dr Costa says:
“Opinion is unchanged as per my earlier report in regards her work injury in December 2012 and subsequent fall in July 2013.
There are signs and symptoms referable to chronic neck strain and aggravation of underlying spondylotic condition including multiple IV disc lesions of the cervical spine and the upper back, chronic post contusional effects to the right shoulder and the right upper limb/ right wist [sic] – and previously there is history of only minor left shoulder symptoms not interfering with work which date back to injury in 2010. The chronic headache and disequilibrium symptoms are probably related to the neck injury i.e. chronic cervical migraine and cervical vertigo secondary to neck injury in 2012.
As a result of her 2012 injuries she suffered a further slip and fall catastrophic type injury on 7 July 2013 when she missed a step and fell off the rear balcony of her house falling around 3 metres and striking her head on the way down and landing on her upper back and shoulders - including the left shoulder/ upper limb and attributable to history of chronic disequilibrium, continuing on strong analgesics and neck stiffness making it difficult to look down or up.”
Under “Attributability” Dr Costa says:
“Her condition is consistent with and reasonably attributable to the history of work injury on the 13th of December 2012 and further complicated by the fall on the 7th July 2013 due to ongoing disequilibrium symptoms and restricted neck movements, resulting in ‘missed the step’ and fell down three steps and then over the balcony and she fell 2 m striking her head and landing on the ground below. History is that she ‘could not look down properly’ and did not see the steps and this is consistent with her previous history of neck injury/chronic disequilibrium and chronic neck stiffness following the multiple work injuries on the 13th of December 2012 - and she was continuing regular intermittent review and assistance with management and her neck and right upper limb injuries had not yet stabilised prior to her further injury on the 7 July 2013.”

Dr Patrick

Dr Patrick has provided four reports dated 10 December 2014,[21] 31 May 2015,[22] 16 July 2020,[23] and 9 April 2021.[24] He examined the applicant on 4 June 2013, 11 September 2014, 19 July 2016, 3 May 2018 and 6 October 2020.
[21] ARD W1613/23 p 16.
[22] ARD W1613/23 p 22.
[23] ARD W1613/23 p 31.
[24] ARD W1613/23 p 34.
As observed by the applicant in submissions, Dr Patrick has changed his opinion over the course of the five occasions on which he saw the applicant and produced the reports referred to above. This change in principally in respect of the injury sustained by the applicant on 1 May 2010 and the contribution, if any, that such injury made to the subsequent course of events suffered by the applicant, in particular the fall on 7 July 2013.
In his first two reports, Dr Patrick expressed the opinion that the injury suffered on 1 May 2010 was in part responsible for the fall on 7 July 2013. In the report of 31 May 2012 he said:
“I do believe that all injuries sustained on 7 July 2013 should be appropriately regarded as consequential upon the workplace injuries of 13 December 2012 and 20 October 2010.”
I think that Dr Patrick has made an error in referring to the injury of 20 October 2010 in that quote. He meant to refer to the injury of 1 May 2010. This is apparent from the reference earlier in the report to the injuries sustained in the workplace accident of 1 May 2010, and his comment:
“The motor vehicle accident of 22 October 2010 was a relatively minor accident, and I believe that this accident has not resulted in any permanent aggravation to physical injuries.”

In his report dated 16 July 2020 Dr Patrick said that:
“In my initial report of 10 December 2014 (page 6) in regard to causation I have allocated 20% resulting from effects of slip and fall accident at work (same employer OPSM/Luxottica). On reflection, I believe that her neck/cervical spine more likely had largely resolved by the time of the workplace accidents of 13 December 2012 (the two accidents this date).”[25]
Dr Patrick then said:
“…the proportionate contributions of each of these previous three events to the fall of 7 July 2012 should be reasonably be regarded as nil resulting from the effects of the accident of 1 May 2010 with the same employer, and 40% resulting from the workplace accident of about 11.30 am on 13 December 2012; and 60% resulting from effects of workplace accident of about 3.30 pm on the same day 13 December 2012.”
[25] ARD W1613/23 p 32.
The final report of Dr Patrick dated 9 April 2021 was produced following a further examination of the applicant on 6 October 2020.
In that report among other issues Dr Patrick deals with assessments of WPI as a result of injury sustained to the cervical spine on 1 May 2010 and 13 December 2012, the detail of which it is not necessary to consider for the purpose of determining the issue of the applicant’s claim that she suffered injury on 7 July 2013 as a consequence of injuries suffered in the incidents of 13 December 2012. However Dr Patrick does say at (the first) [3.3] at the top of page five of the report:
“Nonetheless, I believe that the likelihood is that there have been significant further injuries to cervical spine on 13 December 2012, but with no definitely demonstrating radiculopathy. This is nothing unusual, and it is quite often the case that with the passage of time (sometimes a relatively short period) a clinical radiculopathy may develop.”[26]
[26] ARD W1613/23 p 38.
The respondent takes issue with this, submitting that it is entirely speculative and not borne out by any evidence. It says that any significant pathology of the cervical spine was detected after 7 July 2013, and that unless it is found there were “significant further injuries” on 13 December 2012, then causation cannot be established on the applicant’s evidence. As there is no such evidence the claim must fail.
Dr Patrick notes his examination of the applicant on 4 June 2013 “…some seven months or so subsequent to the two serious separate incidents of injury of 13 December 2012.” At the time of the consultations Ms Konakas had an Aspen collar and TLSO spinal brace, and had been working 20/24 hour a week. At (the second) [3.3] on page five of the report dated 9 April 2021 Dr Patrick said that there was no percent WPI allocated to the cervical spine (apart from the initial injury of 1 May 2010) simply by the fact that clinically she was assessed again as DRE (diagnosis-related estimate) II at the cervical spine rather than DRE III bearing in mind some possible limitations in the setting with regard to clinical examination. That did not mean, according to Dr Patrick, that there had been no further injury or injuries to the cervical spine on 13 December 2012. That was not necessarily the case at all.

Injury to the cervical spine on 13 December 2012

This was conceded by the respondent in the s 78 notice dated 8 August 2019, along with injury to the right shoulder and right wrist:
“Liability was initially accepted in respect of an injury sustained to your neck, right shoulder and right wrist as a result of two separate incidents at work on 13 December 2012.”
In the s 78 notice dated 22 November 2019 which addressed the injury dated 1 May 2010 and alleged consequential injury on 7 July 2013, GIO asserted that liability was initially accepted in respect of the applicant’s allegation of injury sustained in a fall at work on 1 May 2010. However it was concluded that Ms Konakas had recovered from the effects of any injury sustained in that incident. That conclusion was said to be consistent with the medical evidence from independent orthopaedic specialist, Dr Panjratan. Liability was disputed and remained disputed in relation to any allegation of the applicant sustaining a consequent injury as a result of an incident at home on 7 July 2013, consistent with a s 74 dispute notice dated 12 December 2013.
Dr Panjratan saw the applicant on 3 July 2019. There are two reports from him in evidence dated 18 July 2019[27] and 5 August 2019.[28] They are identical except for correction of the applicant’s age at the top of p 6 of the reports. The applicant is correct in her submissions in reply in pointing out that the second report is not produced upon further review of hospital records. These are recorded in the first report of Dr Panjratan.
[27] Reply W1613/23 p 35.
[28] AALD (respondent) 17 May 2023 p 2.
Dr Panjratan addresses the injuries of 1 May 2010 and 13 December 2012 in the reports. He diagnoses the major injuries suffered by the applicant when she fell down the stairs and says that she only had a musculo-ligamentous injury to the cervical spine from injury in 2012. He is asked to assess WPI as a result of the two separate injuries on 13 December 2012. He says that WPI suffered by the applicant as a result of the first incident on 13 December 2012 is difficult to assess due to the superimposed multiple injuries following the fall at home. In respect of the second incident on 13 December 2012 Dr Panjratan says:
“The is no impairment due the second injury for the cervical, thoracic and shoulders. It was not a major injury and I do not believe it would justify for any impairment.”
He then says:
“The subsequent injury at home in July 2013 is not related to the earlier incidents of 13/12/2012 and 01/05/2010”
That is the only opinion Dr Panjratan gives in respect of causation of the fall of 7 July 2013 apart from earlier saying of the applicant:
“She thinks this is work related but that cannot be justified. Regarding the diagnosis she had injury to the cervical spine and the thoracic spine by the two injuries on the same day.”
As noted at [72] above, Dr Costa noted signs and symptoms referable to chronic neck strain and aggravation of underlying spondylotic condition including multiple IV disc lesions of the cervical spine and the upper back, chronic post contusional effects to the right shoulder and the right upper limb and right wrist when he examined the applicant on 21 May 2013 and subsequently prior to the fall on 7 July 2013.
Having regard to the evidence I have summarised above from Dr Iskander, Pip Lindholm, Dr Costa and Dr Patrick I am satisfied that the applicant suffered a soft tissue injury to the cervical spine in the two incidents of 13 December 2013 and also a similar injury to the thoracic spine. The applicant suffered further significant injury to these body parts in the fall of 7 July 2013. It is not necessary to determine the extent of the injuries suffered on 7 July 2013. What is in issue is if that fall was causally related to the injuries suffered on 13 December 2012.
The applicant claims that it was the restriction in her ability to look down, or move her neck from side to side, that was the cause of her missing the step as she descended the stairs at home on 7 July 2013. Dr Costa and Dr Patrick accept this proposition. Dr Panjratan does not.
Dr Rimmer saw the applicant on 21 October 2021 and produced a report dated 21 December 2021.[29] When asked for his opinion as to whether or not the subsequent injury at home in July 2013 was likely a consequence of the injury sustained in the earlier work incidents he said:
“No, this was a totally separate unrelated incident, i.e. missing a step on a staircase and has no relationship whatsoever to the two previous workplace incidences.” [sic]
[29] AALD (respondent) 17 May 2023 p 13.
When asked to clarify whether or not he was of the view of the worker suffered neck and back injuries arising from the work incidents that caused an inability for the worker to look down properly as claimed, Dr Rimmer said:
“No, in my opinion that is completely false. At the time of her homebased injury, she was working 20 hours per week as an optical dispenser and to be able to carry out this activity ie; her job requirements she would have had to have normal function of her cervical spine.”
I do not accept the proposition put by Dr Rimmer that the fact that the applicant was working 20 hours a week as an optical dispenser and able to carry out that activity would mean that she had normal function of her cervical spine. It is apparent from the evidence that the applicant was experiencing difficulty with her work and having to take days off work from time to time. The physiotherapist was of the view in March 2013 that Ms Konakas had returned to work too early.
Dr Rimmer expressed the opinion that all the applicant’s present-day impairments were due to the fall at home in July 2013. For the reasons he set out in his report, he says they had no relationship to the previous two work injuries which he said essentially, from the file provided, the applicant had made a complete recovery.
I do not accept that the applicant had made a complete recovery from the workplace injuries she suffered.
In Kooragang Cement Kirby P said at [810]:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
Notwithstanding the respondent’s submission that Oakley has relevance only to common law matters, I accept the applicant’s submission that the principle set out therein is relevant to the determination of the issue of causation in workers compensation disputes. In this case, the further injury suffered by the applicant on 7 July 2013 would in my view have not occurred if the applicant had not been in the physical condition in which she found herself following the incidents of 13 December 2012. The principle in Oakley was accepted by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[30]
[30] [2019] NSWCA 321 at [126]-[130].
After a common-sense evaluation of the evidence in this matter, I find that the chain of causation between the injuries suffered by the applicant in the two incidents on 13 December 2012 and the injuries suffered on 7 July 2013 was not broken. The injuries suffered by the applicant on 7 July 2013 are therefore consequent upon the injuries suffered on 13 December 2012.

Referral to a Medical Assessor

The matter of W1613/23 will be remitted to the President for referral to a Medical Assessor for assessment of WPI of the applicant’s cervical spine, thoracic spine, right upper extremity and left upper extremity due to injury suffered on 13 December 2012 and consequential condition suffered on 7 July 2013, such incidents to be assessed together.
The matter of W1654/24 will be remitted to the President for referral to a Medical Assessor for assessment of WPI of the applicant’s cervical spine, thoracic spine and left upper extremity (shoulder) due to injury suffered on 1 May 2010. In this regard, I note that the respondent does not oppose referral of this matter to a Medical Assessor for assessment of WPI as a result of injury on 1 May 2010 in terms as proposed by the applicant, albeit on the basis of the submission that there should be an award in its favour in respect of the applicant’s claim for a consequential condition occurring on 7 July 2013. I have found in favour of the applicant in respect of the consequential condition claim. The terms of referral proposed by the applicant include the right upper extremity. I do not think that this body part should be referred.
Dr Patrick in his report dated 31 May 2018 gives assessments of WPI as a result of injury to the cervical spine, thoracic spine and left upper extremity (shoulder) on 1 May 2010. The ARD in matter number W1654/23 contains a claim for 16% WPI in accordance with this assessment. These body parts will be referred for assessment in accordance with the claim in the ARD.

SUMMARY

The applicant sustained a condition on 7 July 2013 consequent upon injuries sustained on 13 December 2012
Matter number W1613/23 is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the cervical spine, thoracic spine, right upper extremity and left upper extremity on 13 December 2012 (two incidents) and the consequential condition suffered on 7 July 2013, such incidents to be assessed together.
The documents to be referred to the Medical Assessor are:
(a)    ARD and attached documents – W1613/23 (in respect of the incidents of 13 December 2012 and the fall down the stairs of 7 July 2012);
(b)    Reply and attached documents;
(c)    AALD dated 17 March 2023 lodged by the applicant with Certificate of Capacity dated 17 March 2023 attached;
(d)    AALD dated 11 May 2023 lodged by the applicant and attachments commencing with the “Income Tax Material sent to Gair Legal – 16.08.’19”;
(e)    applicant’s List of Experts’ Reports referenced to page numbers in Commission’s Electronic Records;
(f)    AALD dated 17 May 2023 lodged by the respondent with expert medical reports attached;
(g)    AALD dated 25 May 2023 lodged by the applicant with Certificate of Capacity issued by Dr Costa dated 21 May 2023 attached, and
(h)    the Certificate of Determination and Statement of Reasons.
Matter number W1654/23 id remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the cervical spine, thoracic spine and left upper extremity on 1 May 2010.
The documents to be referred to the Medical Assessor are:
(a) ARD and attachments, and
(b) Reply and attachments.
The matter is referred back to the Commission for the determination of outstanding issues after issue of the Medical Assessment Certificate(s) and expiration of the appeal period in respect of such certificate(s).

[2023] NSWPIC 290

20 June 2023